LegalResearchFoundation

The growing popularity of fan fiction is increasingly seen as a threat to a copyright owner's economic position and creativity. This article considers to what extent, if any, a person should be able to produce a literary work of fan fiction without infringing the copyright of an original work if that person takes an entire work, but not the exact words and expression, and expands or modifies the perspective, conclusion, settings or characters. The proliferation of fan work raises interesting questions of law and policy that are yet to be substantively raised or considered ( judicially or academically) in the New Zealand context. A comparative analysis with the United States guides the article's consideration of copyright protection, infringement and defences which necessarily leads into a discussion on like-treatment with academic works. It is on the above basis that the article then comes to the conclusion that the theoretical underpinnings of copyright law should be seen as encouraging fan work, rather than preventing it.

This article considers the role of judicial review in New Zealand tax disputes in light of the Supreme Court's 2011 decision in Tannadyce Investments Ltd v Commissioner of Inland Revenue. By majority, the Court held that tax assessment decisions made by the Commissioner of Inland Revenue are only able to be challenged under the statutory mechanisms of the Tax Administration Act 1994, and that judicial review of these decisions is prohibited unless invocation of the statutory procedure is impossible. This interpretation of the Act reversed many years of New Zealand jurisprudence concerning the permissible use of judicial review in tax disputes. This article argues that the decision in Tannadyce accurately reflects Parliament's purpose in enacting the Act, and thus that the Supreme Court's approach is more consistent with Parliament's intention than was previous jurisprudence on the topic. It further argues that the unexpected result of the case, namely that judicial review continues to be successfully applied for by taxpayers in disputes with the Commissioner, is a product of problems with the Act itself, not of the case's reasoning. It concludes that judicial discretion over taxpayer applications for judicial review is an essential mechanism in order to control the use of judicial review in place of the statutory dispute resolution scheme.

Section 9 of the Fair Trading Act 1986 (FTA) imposes strict liability on persons who "in trade" engage in misleading conduct. In the majority of cases the "person" who will be sued under this legislation is a trading corporation. But what happens when the corporation is insolvent or financially unstable? Can the aggrieved person successfully sue the individual responsible for the misleading conduct? Is this person (usually a director or employee) acting "in trade"? The literature and case law to date refer to two dominant approaches to answering this question. There is the broad approach, adopted by the Court of Appeal in Body Corporate 202254 v Taylor. In that case it was held that although directors and employees are not themselves trading on their own account, they can be considered as acting "in trade" because they are acting on behalf of a trading entity that is itself "in trade". This can be contrasted with the narrow approach, which maintains that a person cannot be said to be acting "in trade" unless they are themselves "in trade" on their own account. Under this approach directors and employees can never be held liable as principals under s 9 for conduct engaged in on behalf of a company. Despite this standard two-option view, a close analysis of recent case law reveals that courts are, without full articulation, applying neither of these approaches, but are in fact moving toward a middle-ground approach. This article constructs a conceptual framework for this middle-ground approach which allows for employees and directors to be categorised as acting "in trade" only where their role is so intimately connected to the company business that they are effectively engaged in their own trading activity. This approach is both a reasonable interpretation of the phrase "in trade" and accords more closely with the policy objectives and underlying philosophical foundations of s 9 of the FTA than either the broad or the narrow approach.