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Tizard: Copyright (New Technologies) Bill

4 April, 2008
Copyright (New Technologies) Amendment Bill third reading

Associate Commerce Minister Judith Tizard third reading speech to the House on the Copyright (New Technologies) Amendment Bill.

3 April 2008

Madam Speaker

I move that the Copyright (New Technologies) Amendment Bill be now read a third time.

The Bill will update New Zealand's copyright legislation to ensure it keeps up to speed with recent advances in digital technology.

Government’s review and reform of intellectual property law

The Bill forms part of the government’s wide-ranging reform of intellectual property law in general. The programme of reform also includes reviews of:

o The Patents Act 1953;
o The Trade Marks Act 1953;
o The Plant Variety Rights Act 1987;
o The Geographical Indications Act 1994;
o New Zealand’s accession to several key international trade marks treaties;
o The enforcement of criminal offence provision for counterfeiting registered trade marks and piracy of copyright protected works; and
o Government’s decisions on parallel importation and their effect on creative industries.

The programme of reform will ensure that New Zealand’s intellectual property law, will:

o help to support the government’s goals of promoting innovation, creativity and economic growth;

o meet the needs of business, whilst promoting efficiency and minimising compliance costs;

o provide greater clarity and certainty over the scope and enforcement of intellectual property rights, for the benefit of creators and innovators, users of intellectual property, and investors in the development of intellectual property;

o takes account of international practice; and

o complies with New Zealand’s international obligations.

A robust, up to date intellectual property rights regime is an essential part of an innovative, growing economy.

Well defined, enforceable intellectual property rights provide incentives for creativity, by ensuring creators can derive a financial return on their creative efforts.

A current and contemporary intellectual property rights system promotes development of the economy and New Zealand’s identity, by encouraging investment in creativity and innovation.

Copyright is an integral part of the system that protects our creative industries and our information and communications technologies, by prohibiting unauthorised reproduction.

Digital technology presents significant opportunities to open new markets for creators, owners and users of copyright material, as well as potential risks, because digital technology enables high quality copies of the original material to be easily made and communicated. The ease of which digital material can be copied and communicated increases the risk that authorised copies will be made and communicated.

Objectives of the Bill

The objectives of the Bill are to:

o Update and clarify how copyright applies to new technologies and, in particular, in today’s digital environment;

o Promote a modern legal framework that guides the protection and use of copyright material;

o Ensure the effective operation of the Act in the face of emerging technologies; and

o Ensure that the Copyright Act remains fair and effective in the face of emerging needs of a dynamic and technology-supporting economy.

The Bill maintains the balance between protection, access and use already established in the Act.

The Bill creates a flexible framework for technology to operate under by redefining certain terms contained in the Act to make them more technology neutral.

Key Provisions of the Bill

Technology neutral definitions

The Bill amends and replaces existing terms to create a technology neutral framework.

The Bill creates a technology-neutral right of communication to the public. In a digital world of almost instantaneous communication, the ability to control communication of copyright material is as significant as the ability to control copying. Control over communication is necessary to encourage investment in, and the provision of, the effective online distribution methods now demanded by consumers.

Technology-specific terms such as broadcasting and cable programme service are replaced with technology-neutral terms such as communicate and communication work.

Internet Service Provides “ISP”

The Bill 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. Transient or incidental copies that are made by a computer or communications process as part of the integral and necessary processes by which, for example, users browse websites on the Internet will not infringing copyright.

The Bill also 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, the Bill provides for a template notice to be used by copyright owners to inform ISPs about infringing material it is storing or hosting. This regime is called a “notice and takedown” regime and is a common feature of many copyright regimes overseas.

Some changes to the ISP liability system were made following the Bill’s report back from Select Committee. A requirement for an ISP to have a policy for terminating the accounts of repeat infringers has been reinstated, and the offence for providing misleading notices to ISPs has been removed.

Permitted Acts

The Bill updates the existing permitted acts for fair dealing and educational establishments, libraries and archives and clarifies how the permitted acts should apply in the digital environment.

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.

The Bill provides a new limited exception to copyright infringement for Educational Resource Suppliers under certain conditions, where their principal function is the copying and supply of communication works to educational establishments for educational purposes. This will help schools to make greater use of audio visual copyright material without infringing copyright.

The Bill provides a format shifting exception, for copying sound recordings for personal use or the personal use of their household. This exception for format shifting of music aligns the law with the public’s need, although it still takes into account the protection afforded by copyright to the copyright owner.

A key condition to the format shifting exception is that the original 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.

The Bill also provides new limited exceptions for decompilation or adaptation of computer programs under certain conditions. These conditions are that:

o the decompilation is necessary to obtain information necessary for creating an independent program that can operate with the program decompiled; or

o the adaptation is necessary to ensure the lawful use of a program such as the correcting an error in the program to ensure the proper functioning of the program when a properly functioning and error-free copy of the program is not available with a reasonable time at an ordinary commercial price.

The Bill 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.

Technical Protection Measures

Copyright owners are increasingly using technical protection measures “TPM’s” as a practical means to prevent the authorised copying of their works and as a means to develop new business models for the dissemination of their material in the digital environment.

The Act currently 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 Bill gives more comprehensive protection to TPMs in response to the increased risk of copyright piracy by:

o Giving copyright owners the ability to take action in respect of in respect of devices, means or information for circumvention would enable the infringement of all the copyright owners exclusive rights, and not just copying; and

o Introducing criminal offence provisions in limited circumstances where circumvention of a TPM is for large-scale commercial dealing in copyright material.

The Bill also introduces new provisions to enable the actual exercise of permitted acts where TPMs have been applied. These allow the beneficiary of a permitted act, who does not him or herself have that ability to circumvent to seek assistance from the copyright owner or certain trusted organizations, so-called qualified persons.

Parallel Importation of Films

Currently the Act has a 9 month parallel importation ban on films from their international release date. This ban is due to expire on 31 October 2008.

The purpose of the ban is to encourage investment in and the promotion of film production, distribution and exhibition industries and to protect cinema ticket sales by ensuring a film’s cinematic exhibition does not coincide with its availability on video tape or in DVD format.

The Bill renews the 9 month ban until 31 October 2013.

I commend this Bill to the House.


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