Copyright (New Technologies and Performers Rights) Amendment Bill - 1st Reading

Madam Speaker,

I move that the Copyright (New Technologies and Performers’ Rights) Amendment Bill be now read for the first time.

The Bill amends the Copyright Act 1994 and reforms important aspects of New Zealand’s intellectual property regime. It is part of a wider reform process to ensure that our intellectual property legislation is up-to-date, relevant and takes account of international developments.

A current and robust intellectual property rights system is essential for the continuing growth of New Zealand’s creative and innovative sectors. Intellectual property plays a major role in moving towards a knowledge-based economy and in supporting research and development. It should also minimise regulatory barriers to innovation.

Digital technology provides significant opportunities for creators, owners and users of copyright material - as well as potential risks. It allows copyright works to be copied, manipulated and disseminated with minimal effort, cost or reduction in quality.

Digital technology can also be used to to protect copyright, by preventing copying or access to material.

The purpose of the Bill is to ensure that the Copyright Act takes into account the impact of new technology while maintaining a careful balance between the often competing interests of creators, owners and users of copyright works. It also seeks to create a more technology-neutral framework for New Zealand copyright law.

The Bill also considers international developments in copyright and incorporates many aspects of two treaties negotiated by the World Intellectual Property Organisation (known as “WIPO”). The WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty seek to update international copyright standards to take account of developments in digital technologies.

All the amendments introduced by this Bill will be fully reviewed within 5 years to ensure that they operate effectively and continue to be appropriate.

Key provisions of the Bill

Reproduction

The Bill aims to address concerns regarding the scope of the definition of copying. It has been amended to clearly apply to digital copying of works in all forms.

But copying is central to the legitimate operation of digital technology. Computers, email services, DVD players - even the anti-skip function on a portable CD player - all work by making temporary copies of material. The status of these copies, which are technically covered by the Copyright Act, has been unclear.

So the Bill amends the Act to introduce limited exception transient copying in certain circumstances. In other words, the copying that automatically takes place in the operation of a computer or communication system will not amount to an infringement of copyright.

Communication

In a digital world of almost instant communication, the ability to control communication of copyright works is as significant as the ability to control copying. Control over communication is necessary to encourage investment in efficient online distribution methods and new business models demanded by consumers. The increasing popularity of legitimate online music services such as Coke Tunes, Digirama and Amplifier shows that digital distribution of copyright works is core to developments in the creative industries.

Therefore, the Bill replaces the copyright owner’s existing technology-specific rights to control distribution through broadcasting and cable programme services, with a technology-neutral right which applies to all forms of communication of copyright works to the public. This would include email, peer-to-peer file sharing and other digital forms of communication.

Consistent with the technology-neutral communication right, the Bill provides copyright protection for all communication works (for example, transmission via the Internet), not just the signals that carry content in broadcasts and cable programmes.

The Bill also repeals the exemption for cable programme services to retransmit free-to-air broadcasts without the permission of the broadcaster.

Internet service liability

Copying is a central function of the Internet and is central to the services provided by Internet service providers (ISPs). Material may be reproduced at many stages during the course of a transmission and it may be virtually impossible to identify when and where many of these copies are made.

Where the material being copied is subject to copyright protection, an ISP could potentially face liability for copyright infringement by its subscribers. It is in the public interest to ensure cost-effective access to the Internet, which may be affected by this uncertain or increased liability for ISPs.

Consistent with changes in other countries, the Bill introduces a definition of ISP and a range of provisions that limit ISP liability for copyright infringement in appropriate circumstances.

ISPs will not be liable where they are merely providing the physical facilities to enable a communication to take place. The Bill also limits the liability of internet service providers, where an ISP stores infringing copyright material on its servers but does not know or have reason to believe that the material is infringing, and acts within a reasonable time to delete it or prevent access to it as soon as it is aware of the infringement.

Technological protection measures

Technological protection measures (or TPMs) offer a means to combat the ease of unauthorised reproduction and distribution that digital technology provides. There are, however, concerns about ‘‘digital lockup’’. Copyright owners may use technical locks not only to stop their copyright material from being copied but also from being accessed, and can therefore potentially prevent copyright users from making legitimate uses of the material, for example under the fair dealing provisions of the Act.

Currently, the Act allows copyright owners to take action against persons who supply or manufacture devices, means, or information, specifically designed to circumvent measures that prevent copyright material from being copied and are intended to be used to make infringing copies. The Bill extends this right by allowing copyright owners to take action where circumvention could enable infringement of all exclusive rights, not just copying.

For example, the copyright owner will be able to take action in regard to devices where circumvention would enable infringement of his or her communication right. The Act of circumventing the TPM is not, itself, prohibited.

The offence provision introduced in the Bill for commercial dealing in circumvention devices, means and information is intended as an additional deterrent for such activity.

New provisions are also introduced to enable the actual exercise of permitted acts where TPMs have been applied.

Copyright management information

The Bill introduces protections for copyright management information that identifies content protected by copyright and the terms and conditions of use. Criminal penalties are also introduced for large scale commercial dealing in copyright material, where the dealer knows that electronic rights management information has been removed or altered.

Permitted acts

The ‘‘permitted acts’’ or exceptions to the exclusive rights of copyright owners contained in the Act provide an important balance between protection of copyright and access for users.

The Bill clarifies and amends the exceptions to copyright owners’ exclusive rights, particularly in relation to fair dealing, library, archival, and educational use, and time shifting.

It also introduces new exceptions for format-shifting of sound recordings for private and domestic use, and for decompilation and error correction of software.

Format shifting is a term used to describe the practice of copying a sound recording from one format to another, for example from a CD to a portable MP3 player.

Today, the popularity of MP3 players, iPods and other portable digital music players mean that people want to transfer music that they have legitimately bought onto these devices to take advantage of new technology or to enjoy music in different locations.

Yet despite the fact that this activity is common practice, it is actually an infringement under the Copyright Act - a fact that most music lovers don’t know. This makes otherwise law-abiding New Zealanders into unintentional law breakers. The Bill amends this situation to reflect both fairness and reality.

The exception does not legitimise clearly damaging behaviour like copying CDs for friends or authorised on-line file sharing of music.

Performers’ rights

The Copyright Act also provides a range of rights to performers, enabling them to exercise control over the recording of their performances and the distribution of those recordings. This practice of making illegal copies, known as “boot legging”, can have a major impact on the ability of performers’ to obtain a fair commercial return for their efforts.

In keeping with the changes to the main copyright provision in the Act, the Bill will update the technology-specific language currently used and will introduce a communication right for performers.

Conclusion

Madam Speaker, copyright legislation is a key aspect of New Zealand’s intellectual property rights framework. Copyright continues to be relevant in the digital age and is an important tool for digital content delivery and use, commercially or non-commercially.

The Bill promotes a modern legal framework that guides the protection and use of copyright materials. The Bill will provide more clarity and transparency of how the Copyright Act applies in the digital environment.

In particular, the Bill will enhance certainty in how the exceptions in the Act apply to digital works and allow users of copyright material, for example, libraries and educational institutions, to make use of digital technology with confidence.

The Bill will increase incentives for investment in creative industries, information communication technology development and new business models for delivery of copyright works. Increased certainty will further be created by New Zealand’s law being more in line with our major trading partners.

Increased certainty will also encourage continued supply of copyright works and means of distribution, such as by Internet service providers, within New Zealand and from overseas, setting conditions to encourage continued access to information and innovations necessary for cumulative innovation.

I move that this Bill be now referred to the Commerce Select Committee for consideration.