3 October, 2008
Copyright (New Technologies) Amendment comes into force
Associate Commerce Minister Judith Tizard has announced that recent amendments to copyright legislation will soon come into force. The amendments update New Zealand's copyright law to reflect current advances in digital technology.
"The Copyright (New Technologies) Amendment Act 2008 will ensure our copyright laws keep up to speed with the dynamic nature of digital technology," Judith Tizard said.
The new copyright provisions are part of the government's goal of promoting innovation, creativity and economic growth. The amendments support the needs of business by improving clarity and certainty over the scope and enforcement of intellectual property rights.
"A robust, up to date intellectual property rights regime is an essential part of an innovative, growing economy," said Judith Tizard.
"This Act helps protect the intellectual property of creative workers in the face of changing technology, so that both creators and viewers of cultural products can all go on enjoying these things that enrich our lives."
"It's about ensuring that New Zealand music and movies can keep being made. We recognise that some people (wrongly) believe that all music, movies and games are 'free' on the internet. This illegal downloading is really damaging to our creative industries," said the Minister.
Section 92A of the Act contains a requirement for internet service providers to have, and reasonably implement, a policy for termination of accounts of repeat copyright infringers in appropriate circumstances.
The Minister said that the Act will come into force as a whole on 31 October 2008 with the exception of section 92A which comes into force on 28 February 2009.
Judith Tizard said the reason for the delay to section 92A is to enable rights holders and internet service providers (ISPs) time to reach agreement on how it can be effectively implemented.
Judith Tizard and Communications and Information Technology Minister, David Cunliffe, will meet with ICT industry representatives next week to discuss issues associated with the policy's implementation.
Key Provisions in the Act
- It amends and replaces existing terms to create a technology neutral framework
- It creates a technology-neutral right of communication to the public by extending what constitutes a communication.
- Technology-specific terms such as broadcasting and cable programme service are replaced with technology-neutral terms such as communicate and communication work.
Internet Service Providers (ISPs)
- It clarifies the liability of Internet Service Providers "ISPs" when it comes to copyright infringement.
- It introduces a limited exception from copyright infringement where the ISP merely provides the physical facilities to enable a communication to take place.
- It provides that there is no liability for an ISP when storing and caching infringing copyright material when it deletes or prevents access to infringing material as soon as possible after it becomes aware that the material is likely to infringe copyright. To facilitate ISPs becoming aware of infringing material, regulations outline what information is to be provided when a notice of infringement is submitted to ISPs.
Fair Dealing Exceptions
- It updates the existing permitted acts for fair dealing and educational establishments, libraries and archives.
- Educational establishments, libraries and archives can create and store digital copies of works on the Internet or other electronic retrieval systems, provided certain conditions are met.
- It provides a new limited exception to copyright infringement for Educational Resource Suppliers under certain conditions. This will help schools to make greater use of audio visual copyright material without infringing copyright.
- It provides a format shifting exception for copying sound recordings for personal use or the personal use of their household provided certain conditions are met. This exception for format shifting of sound recordings aligns the law with the public's needs for listening to music, although it still takes into account the protection afforded by copyright to the copyright owner.
- Two key conditions to the format shifting exception is that the original purchaser must not make more than one copy for use on each device owned and the purchaser must retain both the original version of the sound recording purchased and the copy made. This provision does not legitimize copying of CDs for friends or online file-sharing, both these actions remain an infringement of copyright.
Computer Programme Exceptions
- It provides new limited exceptions for decompilation or adaptation of computer programs under certain conditions.
- It provides that a lawful user of a computer program does not infringe copyright in it by observing, studying or testing the functions of the program in order to determine the ideas and principles that underlie the program.
Technological Protection Measures (TPMs)
- Copyright owners are increasingly using technological protection measures "TPM's" as a practical means to protect their copyright and to develop new business models for the dissemination of their material in the digital environment.
- The previous Act allows copyright owners to take action against a person who supplies or manufactures devices, means or information specifically designed to circumvent copy-protection and which are intended to be used to make infringing copies of copyright works.
- The Amended Act will give more comprehensive protection to TPMs in response to the increased risk of copyright piracy by giving copyright owners the ability to take action in respect of devices, means or information where circumvention could enable the infringement of all the copyright owners' exclusive rights, and not just copying (e.g. webcasting).
- It introduces criminal offence provisions in limited circumstances where circumvention of a TPM is for large-scale commercial dealing in copyright material.
- It introduces new provisions to enable the actual exercise of permitted acts where TPMs have been applied.