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After receipt of submissions from the public and publication of a select committee report, the Copyright (New Technologies) Amendment Bill is due to be debated in Parliament for a second time. But progress seems to have stalled. What seems to be holding things up?
The Bill
The Bill is a result of the Government’s review of the ability of current copyright law under the Copyright Act 1994 to cope with fast-paced technological change. The Bill's intention is to clarify the application of the Copyright Act to digital technology and provide a technology-neutral framework, to maintain the balance between the protection afforded to owners of copyright works and the public's legitimate rights of access to those works.
In summary the Bill:
- extends copyright protection to a technology-neutral category of "communication works";
- introduces new exceptions to allow for format-shifting of sound recordings and time-shifting for private and domestic use, for decompilation and error correction of software, and for transient copying by computers or communication networks as a result of an inevitable technical process, as well as updating existing permitted acts such as fair dealing, library, archival, and educational use to apply to digital works;
- limits the circumstances for potential liability for copyright infringement of Internet Service Providers (ISPs);
- expands provisions relating to technological or informational means of protecting copyright, facilitates the exercise of permitted acts where such protection measures have been applied and introduces offences for dealing in devices designed to circumvent those protection measures.
Rights for Individuals – Format Shifting
A number of common issues with the Bill have been identified by the general public, technology commentators and the select committee, particularly in relation to the right of individuals to format shift.
A key concern emerging from the public submissions was that the provisions permitting format shifting apply only to sound recordings. While the Bill proposes to make 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 for personal use, it does not extend that right to other media such as video.
Many feel that this approach fails to take into account that format shifting of video has become increasingly common in New Zealand due to the prevalence of devices such as laptops, mp3 players and iPods. If the Bill does not extend the format shifting exception to video, it will still be "illegal" to transfer content which is subject to copyright (such as DVDs) to video iPods and similar devices.
Failure to do so would mean New Zealand palpably fails in its goal for copyright law to be technology neutral. For example, in the United States, individuals have certain rights to format shift video under the notion of "fair use" (a general exception to copyright infringement for activities which are deemed to be fair, which essentially allows copying to another format, so long as copies are not distributed to others).
The Bill also proposes that copyright holders can choose 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.
Issues for Business - Repeal of Section 88
The Bill has raised issues not just for individual users of portable media devices, but also for businesses, particularly cable and satellite service providers.
During the (now stalled) second reading of the Bill, the Government advised that it had sought a Supplementary Order Paper to repeal section 88 of the Copyright Act 1994. Section 88 permits the reception and immediate retransmission of a free-to-air broadcast by a cable programme service in certain circumstances without infringing copyright. Its repeal was proposed in the original Bill, but later removed by the select committee (who provided no rationale for doing so).
At the same time, Mr Gordon Copeland, an independent member of Parliament, produced a Supplementary Order Paper which proposed not only the retention of section 88, but its expansion to apply to additional technologies. This Supplementary Order Paper appears to pick up on the lobbying efforts of Sky Television and TelstraClear.
Sky Television and TelstraClear made submissions to the select committee that retention of section 88 would allow free-to-air broadcasts (such as Prime Television) to be delivered effectively and conveniently, and improve reception quality for consumers in isolated areas. Sky Television also sought expansion of section 88 to digital satellite retransmission (including via emerging broadband technologies). This would allow it and other satellite broadcasters to simulcast free-to-air channels (and thus expand their audiences and advertising revenue). Sky Television also argued that it would encourage viewers to move from analogue to digital television, which is in line with the Government's stated objectives.
However, the Government did not find the submissions compelling on the basis that they address a different set of concerns than those that section 88 was intended to achieve. (The original purpose of Section 88 was to encourage investment in telecommunications and improve reception quality, and the introduction of a broader range of transmission technologies has allowed for this.)
What's Next?
It is not known when the second reading of the Bill will resume, and exactly what further amendments are in store.
The Government seems keen to repeal section 88 of the Copyright Act. However, the introduction of Mr Copeland's Supplementary Order Paper means that this issue may be hotly debated in Parliament.
It seems unlikely that the format shifting provisions will change, based on the Government's view that format shifting of copyright works other than sound recordings is not widespread. This will disappoint those who believe that the Government's view is unrealistic and fails to take into account fast growing trends here and overseas in the portable media players market. Perhaps the Government is waiting to see whether Australia extends its format shifting exception to video content when its own recently amended copyright laws come up for review in the first half of this year.
We will keep x-tech readers informed of progress of the Bill and its proposed implementation.
Key Contacts
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.
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