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Failure to right Copyright wrongs

Media Release 30 July 2007

Failure to right Copyright wrongs

InternetNZ (The Internet Society of New Zealand) notes that there are some small improvements but significant disappointments in the Commerce Committee's report back on the Copyright (New Technologies and Performers' Rights) Amendment Bill.

InternetNZ made submissions on ISP liability, the proposed notice and takedown system, format shifting and technological protection measures.

“We cannot express support for the Bill in the form it has been reported back,” says Executive Director Keith Davidson.

“The Bill locks in outdated restrictions. The notice and takedown approach has been widely discredited internationally, even major industry players are saying TPMs aren’t relevant, and format and time shifting provisions are so restrictive that people will ignore them.

“The process of this Bill has demonstrated a significant issue - copyright law in New Zealand needs to be completely re-thought in the context of modern technology and the Internet. Trying to patch up the outdated 1994 Act has not worked.”

The Committee has retained the idea of a notice and takedown system akin to that being abused in overseas jurisdictions.

“InternetNZ proposed a better approach, notice-notice, that would avoid many of the issues that have arisen in the United States,” says Davidson.

“ISPs should simply not be put in the position of having to decide what is and isn’t copyright infringement. Now they will have to pull material down if they are ‘aware’ that material is ‘likely to infringe’.

“Of course they will be conservative and simply take material down regardless, creating the chilling affect noted in overseas experience and impacting freedom of speech.”

The Committee has added a penalty regime for malicious takedown notices. “However, this will require a high threshold and there is no benefit back to the affected person or business, whose website may be taken down for some considerable time,” says Davidson.

The public has also been let down badly on format shifting of music. "It's a "Clayton's" option where format shifting of music is made legitimate for personal and home use but music suppliers can make it illegal by contracting out, presumably by simply putting a sticker on the shrink wrap at point of sale," says Davidson. “The removal of the two year expiry is good, but what’s the point of offering format shifting to the public when the music industry can opt out of allowing it?”

The clauses around technological protection measures remain problematic. InternetNZ welcomes the change to neutral language to describe a TPM circumvention device, the exclusion of geographic controls, and the loosened up ability to get help in breaking a TPM for Permitted Acts. However, it is not clear how a member of the public can legitimately get the TPM circumvention device that they are allowed to use in the exercise of Permitted Acts if the sale and distribution this device is an offence.

“Overall, the Bill as reported back does contain improvements on the draft. However on the key issues outlined above, the Committee is recommending legislation that is not fit for purpose,” Davidson says.

ENDS

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