|
Following our article in the March edition of xtech ("The Copyright (New Technologies) Amendment Bill: Delayed by Individual and Big Business Interests?"), we can report that New Zealand's copyright law has finally been brought into the twenty first century with the passing of the Copyright (New Technologies) Amendment Act (Act).
After a protracted three years of debate, the Act was passed on Tuesday 8 April 2008, although no date has been set for when the majority of the provisions of the Act will come into force. However, already it has sparked heated discussions amongst those affected.
Final amendments made to the Act, following the second reading of the Bill, include:
- An expansion of the educational purposes provisions of the Act. A new definition has been added for "educational resource supplier" (that is, someone who copies and supplies works to educational establishments for educational purposes, operates as a non-profit business and is approved by the Minister of Education as such a supplier) and a new section 48 has been introduced. Section 48 provides an exclusion from infringement for copying and communication of a communication work for educational purposes, and also clarifies where the exclusion will not apply.
- No substantive amendments were made to the re-broadcast rights for television under section 88 of the Act (despite the Copeland Supplementary Order Paper). This means that the pay-networks will have to continue to negotiate with the free-to-air channels in order to re-broadcast their material (particularly to those out-lying areas that do not get adequate reception for free-to-air channels).
- A continuation of the 9 month parallel import ban on films into New Zealand (from their international release date). This was set to expire in October 2008, but will now run until 31 October 2013.
- The introduction of a requirement that Internet Service Providers (ISPs) have a policy for terminating accounts of repeat infringers (that is a person who repeatedly infringes the copyright in a work by using one or more of the internet services of the ISP).
- A provision that the form of the new a notice of infringement provided to ISPs by copyright owners (discussed below) will be prescribed by regulation.
- Clarification and strengthening of the provisions relating to electronic devices with technological protection measures (TPMs) to prevent copying.
Timely changes – new ways to deal with new technology
- Individuals - format shifting allowed for sound recordings
The Act makes it legal for an owner of a sound recording (such as a music CD) to make one copy of the recording onto the owner's digital play-back devices (iPods, mp3 players etc) for personal use. Copyright owners (eg. record companies) have the option to contract out of this exception provided this is clearly communicated to consumers. The effect of this is to allow additional copying rights for copyright users but also allow copyright owners a degree of control over large-scale format shifting of their works.
- Individuals - time shifting allowed for television broadcasts
The Act also clarifies the rights of individuals to make personal copies of television broadcasts for the purpose of viewing the show later by specifically excluding the right to record and copy from an on-demand service. All permitted copies (i.e. proper time-shifting from a broadcast) must be strictly for personal use and not kept beyond the period reasonably necessary to watch the show (i.e. cannot be viewed multiple times on demand).
- Limitation of liability for Internet Service Providers
The Act clarifies the liability of ISPs when it comes to hosting infringing works. It provides there is no liability for an ISP when storing and caching infringing copyright material provided the ISP deletes or prevents access to infringing material as soon as possible after it becomes aware that the material is likely to infringe copyright. Such awareness can result from a valid notice issued by the copyright owner (as noted above, the new Act provides that the form of such a notice will be prescribed by regulation).
- Safeguards for Technological Protection Measures
Copyright owners have developed technological protection methods (TPM's) as a means of protecting their copyright and in response to the increased risk of copyright piracy, particularly in the new-age digital environment.
The Act safeguards the rights of those wishing to undertake legitimate activities in relation to a TPM protected device, and also introduces offence provisions for those using or dealing in TPM circumvention devices for large-scale commercial dealing in copyrighted material.
Limitations – Room For Review and Amendment in The Future?
- No format shifting right for other media
As foreshadowed in our March Xtech article, the Act does not extend the format-shifting right to other media such as video – meaning that it is "illegal" to transfer content which is subject to copyright (such as DVDs) to video iPods and similar devices. Given that one of the Act's intentions is to create a technology-neutral framework, allowing format shifting rights for sound recordings but not video recordings appears to be without rational explanation, and is an unfortunate failure to treat technology neutrally. This may be something that will need addressing very soon in the future.
- Contracting out of format-shifting by copyright owners – a blessing in disguise?
The Act also allows copyright owners to contract out of the format shifting exception (ie prohibit consumers from transferring recordings to digital format), provided that this is clearly communicated to consumers. Some critics have questioned the point in having the format shifting provisions at all if copyright holders can simply contract out of them. However, the exception may have the effect of exerting market pressure on rights holders to justify contracting out, for example, resulting in differential pricing for products where format-shifting rights are restricted.
- Are ISPs getting a rough deal?
As detailed above, where a copyright owner considers an ISP is hosting infringing material, it can now serve a notice, requesting the ISP to remove the infringing material. ISPs will also be required to have a policy for terminating or suspending accounts of repeat offenders.
While the system has been criticised by some ISPs as unduly onerous and open to abuse (citing the somewhat similar United States system as an example), the ISP take-down provisions appear sensible, although their effectiveness will be determined by how well (and efficiently) the take-down system is regulated. The regulations determining the form and procedure for dealing with such notices have yet to be released, so the effectiveness of this option is yet to be tested.
Ending in a Positive Note…
The digital age has created a real tension in the copyright world. Digital technology has allowed users the ability to copy works quickly, easily and on a large scale. This in turn has created an environment potentially prone to abuse of copyright works on a massive scale. The Act needed to be realistic – limiting liability for ISPs and for personal users making fair use of works, but still providing reasonable protection for copyright owners. For the most part, the Act has balanced these needs well.
Technology, like rust, never sleeps. There is still reason for keeping a close eye on the impact of future developments.
Key Contacts
Earl Gray +64-9-977 5002 earl.gray@simpsongrierson.com
Richard Watts +64-9-977 5182 richard.watts@simpsongrierson.com
Sonya Hill +64-9-977 5305 sonya.hill@simpsongrierson.com
Note: The information provided in this article is intended to provide general information only. This information is not intended to constitute expert or professional advice and should not be relied upon as such. Specialist legal advice should always be sought for your particular circumstances.
|
