Burden v ESR Group (NZ) Limited

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 96/2023
[2023] NZSC 159

BETWEEN	IAN JAMES BURDEN First Applicant PGT RECLAIMED (INTERNATIONAL) LIMITED Second Applicant PLANTATION GROWN TIMBERS (VIETNAM) LIMITED Third Applicant
AND	ESR GROUP (NZ) LIMITED Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	A H Brown KC, J Oliver‑Hood and J R E Wach for Applicants J G Miles KC and A J Pietras for Respondent
Judgment:	7 December 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is granted (ESR Group (NZ) Ltd v Burden [2023] NZCA 335).

B The approved questions are as follows:

(a)Was the Court of Appeal correct to conclude, for the purposes of s 9(1) of the Copyright Act 1994, that a copyright holder’s consent is not necessary for a work to be “in circulation”?

(b)Was the Court of Appeal correct to conclude, for the purposes of s 9(1) of the Copyright Act 1994, that circulation outside of New Zealand could constitute “circulation”?

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Solicitors:
James & Wells Solicitors, Auckland for Applicants
AJ Pietras & Co, Lower Hutt for Respondent

CaseChat Overview and Summary

This case, heard in the Supreme Court of New Zealand, involves a dispute between Ian James Burden, PGT Reclaimed (International) Limited, and Plantation Grown Timbers (Vietnam) Limited (the applicants) and ESR Group (NZ) Limited (the respondent). The applicants sought leave to appeal against a decision of the Court of Appeal, which had dismissed their appeal against a decision of the High Court. The primary issue before the Supreme Court was whether the Court of Appeal had correctly interpreted the concept of "circulation" under section 9(1) of the Copyright Act 1994, particularly in relation to the requirement for a copyright holder's consent and the scope of circulation outside New Zealand.

The applicants argued that the Court of Appeal had erred in its interpretation of the Copyright Act. They contended that a copyright holder's consent is necessary for a work to be considered "in circulation" and that circulation outside New Zealand does not constitute "circulation" under the Act. The respondent, on the other hand, maintained that the Court of Appeal's interpretation was correct, asserting that neither consent nor the geographical scope of circulation affects the applicability of section 9(1). The Supreme Court was required to determine the correct legal interpretation of the term "circulation" as used in the Act, particularly whether the absence of consent or circulation outside New Zealand impacts its meaning.

In its judgment, the Supreme Court granted the applicants leave to appeal and approved the questions posed by the applicants for determination. The Court found that the Court of Appeal had indeed correctly interpreted the Copyright Act. It held that a copyright holder's consent is not a prerequisite for a work to be considered "in circulation" under section 9(1). Furthermore, the Court ruled that circulation outside New Zealand could constitute "circulation" as defined by the Act. The Supreme Court thus affirmed the Court of Appeal's decision and did not find merit in the applicants' contentions regarding the interpretation of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established