Layout Designs Act 1994 (reprint as at 01 December 2002), New Zealand

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

Ageneraloutlineofthesechangesissetoutinthenotesattheendofthisreprint,togetherwith other explanatory material about this reprint.

This Act is administered by the Ministry of Economic Development.

Part 2 Ownership and nature of layout design rights

12 Ownership of layout design rights 8 13 Nature of layout design rights 9 14 Infringement of layout design rights 9

Part 3 Exceptions

15 Innocent commercial exploitation 10 16 Copying for private use 10 17 Copying for research or teaching purposes 11 18 Evaluation or analysis 11 19 Commercial exploitation of eligible layout design 12

previously exploited under licence 20 Use for defence, security, and other purposes 13 21 Nature and scope of rights under section 20 13 22 Duty to inform owner 14 23 Owner of layout design rights entitled to remuneration 14 24 Appeal to High Court 14

Part 4 Remedies for infringement

25 Actions for damages 15 26 Injunctions 16 27 Application of sections 28 to 34 to exclusive licensee 16 28 Rights of exclusive licensee 16 29 Proceedings where concurrent rights exist 17 30 Defences in proceedings by exclusive licensee 17 31 Assessmentofdamageswhereexclusivelicencegranted 17 32 Apportionment of profits between owner and exclusive 18

licensee 33 Limitation on relief where separate proceedings relate to 18

same infringement 34 Liability for costs 19 35 Presumptions 19 36 Proof of certain facts 19

Part 5 Miscellaneous

37 Eligible countries 20 38 Prospective ownership of layout design rights 21 39 Assignments and licences of layout design rights 21 40 Groundless legal proceedings 22

2

An Act to provide for the protection of layout designs for integrated circuits

1 Short Title and commencement

(1)

This Act may be cited as the Layout Designs Act 1994.

(2)

This Act shall come into force on 1 January 1995.

Part 1 Interpretation and application 2 Interpretation

(1) In this Act, unless the context otherwise requires,— commercially exploited has the meaning set out in section 3 Copyright Tribunal means the Copyright Tribunal estab

lished under Part 10 of the Copyright Act 1994 Crown—

(a)

meansHerMajestytheQueeninrightofNewZealand; and

(b)

includesaMinisteroftheCrown,adepartment,andan Office of Parliament; but

(c)

does not include—

(i)

a Crown entity; or

(ii)

a State enterprise named in Schedule 1 of the

State-Owned Enterprises Act 1986 Crown entity has the same meaning as in section 2(1) of the Public Finance Act 1989

department meansanydepartmentorinstrumentoftheGovernment, or any branch or division thereof; but does not includeabodycorporateorotherlegalentitythathasthepower to contract, Public Trust, or the Export Guarantee Office

eligible country means an entity for the time being declared by an order under section 37(1) to be an eligible country for the purposes of this Act eligible layout design means an original layout design—

(a)

themaker,orinrelationtoajointlymadelayoutdesign any 1 or more of the makers, of which was, at the time the layout design was made, an eligible person; or

(b)

that was first commercially exploited in New Zealand

or in an eligible country eligible person means—

(a)

aNewZealandcitizenorapersondomiciledorresident in New Zealand:

(b)

a body corporate incorporated in New Zealand:

(c)

acitizenofaneligiblecountryorapersonwhoisdomiciled or resident in an eligible country:

(d)

a body corporate incorporated in an eligible country exclusive licence means a licence in writing, signed by or on behalf of the owner or prospective owner of layout design rights, authorising the licensee, to the exclusion of all other

persons, to do an act that, under this Act, the owner would, but for the licence, have the exclusive right to do exclusive right has the meaning set out in section 4 future rights means layout design rights that will come into

existenceatafuturetimeoronthehappeningofafutureevent integratedcircuitmeansacircuit,initsfinaloranintermediateform,inwhichtheelements,atleast1ofwhichisanactive element,andsomeoralloftheinterconnectionsareintegrally

formedinoronapieceofmaterialandthatisintendedtoperform an electronic function layout design means the three-dimensional disposition, how

ever expressed, of the elements, at least 1 of which is an active element, and of some or all of the interconnections, of an integrated circuit; and includes such a three-dimensional disposition prepared for an integrated circuit intended for manufacture

layout design rights means the exclusive rights specified in

section 13 in relation to an eligible layout design material form, in relation to a layout design, includes any form of storage or expression (whether visible or not) from which the layout design, or a substantial part of it, can be reproduced Minister meanstheMinisteroftheCrownwho,undertheauthority of anywarrantorwith the authorityofthe PrimeMinister,isforthetimebeingresponsiblefortheadministrationof this Act

prospective owner means,—

(a)

inrelationtofuturelayoutdesignrightsthatarenotthe subjectofanagreementofthekindreferredtoin section 38(1) , the person who will be the owner of those rights when they come into existence; or

(b)

inrelationtofuturelayoutdesignrightsthatarethesubject of such an agreement, the person in whom those rights will vest under that subsection when they come into existence

protection period, in relation to an eligible layout design, means the period beginning on the day on which the layout design was made and ending,—

(a)

if the layout design is first commercially exploited within5calendaryearsafterthecalendaryearinwhich the layout design was made, at the end of the tenth calendaryearafterthecalendaryearinwhichthelayout design was first commercially exploited; and

(b)

inanyothercase,attheendoftheperiodof15calendar yearsafterthecalendaryearin whichthelayoutdesign was made.

(2) In the case of an entity that is an eligible country but is not a State, part of a State, or a territory for whose international relations a State is responsible,—

(a)

the reference in paragraph (d) of the definition of the term eligible person in subsection (1) to a body corporateincorporatedinan eligible countrymustberead as a reference to a body corporate incorporated under the rules of the entity:

(b)

thereferencein section37(2)(b) tothelawofaneligible country must be read as a reference to the rules of the entity.

Compare: Circuit Layouts Act 1989 s 5 (Aust)

Section 2(1) Copyright Tribunal : amended, on 1 January 1995, by section 236(1) of the Copyright Act 1994 (1994 No 143).

Section2(1)department : amended,on1March2002,bysection170(1)ofthe Public Trust Act 2001 (2001 No 100).

Section2(1)eligiblecountry : substituted,on14October1999,bysection2(2) of the Layout Designs Amendment Act 1999 (1999 No 123).

Section 2(1) Minister : inserted, on 14 October 1999, by section 2(2) of the Layout Designs Amendment Act 1999 (1999 No 123).

Section2(2): added,on14October1999,bysection2(3)oftheLayoutDesigns Amendment Act 1999 (1999 No 123).

Part 4 Remedies for infringement 25 Actions for damages

(1)

A court of competent jurisdiction may, on the application of the owner of layout design rights in an eligible layout design, if it is satisfied that the rights have been infringed,—

(a)

make an order for the payment of damages against the person by whom the rights were infringed; or

(b)

requireanaccountofprofitstobetakenasbetweenthe owner of the rights and the person by whom the rights were infringed.

(2)

Where, in proceedings for an infringement of layout design rights,—

(a)

it is established that an infringement was committed; but

(b)

at the time of the infringement the defendant was not aware,anddidnothavereasonablegroundsforsuspecting,thattheactconstitutingtheinfringementwasaninfringement,—

the court shall not make any order for the payment of damages against the defendant in respect of the infringement, but may order an account of profits to be taken in respect of the infringement, whether any other relief is granted or not.

(3) Where,inproceedingsinrespectofaninfringementoflayout design rights,—

(a)

an infringement is established; and

(b)

the court is satisfied that it is proper to do so, having regard to—

(i)

the flagrancy of the infringement; or

(ii)

any benefit shown to have accrued to the defendant because of the infringement; or

(iii) any other relevant matters,— the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances. Compare: 1962 No 33 s 24(1)–(3); Circuit Layouts Act 1989 s 27 (Aust)

26 Injunctions A court of competent jurisdiction may, on the application of the owner of layout design rights in an eligible layout design, grantaninjunctionrestrainingapersonfromengaginginconduct that constitutes, or would constitute, an infringement of those rights.

27 Application of sections 28 to 34 to exclusive licensee Sections 28 to 34 apply to an exclusive licensee of layout de sign rights under a licence that is in force at the time the conduct constituting an infringement of those rights takes place. Compare: 1962 No 33 s 26(1); Circuit Layouts Act 1989 s 29 (Aust)