New Zealand Reforms Copyright Law

The New Zealand Parliament has passed a 61-page amending statute, the Copyright (New Technologies) Amendment Bill (Bill) to modify the Copyright Act in order to address digital technologies issues and to bring it in line with the World Intellectual Property Organization (WIPO) treaties. The Bill allows for format-shifting of sound recordings for private use, for example to copy music from a CD to a portable music player, but does not provide the same right for video recordings. The right is available only if the purchaser of a recording is not bound by contractual provisions that specify when the recording may be copied, so that record companies can effectively opt out, if they wish. The Bill also provides for time-shifting of any scheduled program for personal use. The Bill imposes an obligation on ISPs to terminate accounts of repeat copyright infringers, although the requirement is imprecisely expressed. It requires ISPs to "reasonably implement a policy" and to terminate an account "in appropriate circumstances". It also apparently puts the onus on the ISP to determine that infringement has occurred. However, ISPs are given immunity from infringement where they cache material, subject to various requirements such as deleting the cached material when the original source material is deleted. They are also generally absolved of liability for infringement solely on the basis that a user uses their service to communicate or store infringing works where they do not have reason to believe the material infringes. The Bill provides a notice mechanism through which copyright owners can notify the ISP of the existence of infringing works on their systems. Courts are required to consider such notices in determining if an ISP had reason to believe that material infringes copyright. The Bill provides for penalties of up to $150,000 and five years' imprisonment for providing commercial products or services intended, or likely to be used, to infringe copyright of a work protected by Technological Protection Measures (TPM). However, in contrast to the US DMCA, exceptions are provided for permitted acts under fair dealing provisions and for encryption research. The definition of TPMs is limited to measures for preventing infringement and does not include, for example, measures that try to limit in which geographic market material may be used. The Bill also allows for reverse engineering of software where the purpose is to determine the ideas and principles that underlie the program. Observing, studying, and testing of software are expressly permitted for such lawful purposes, as is decompilation for the purpose of determining how to interoperate with the program. Some observers have pointed out that the provisions relating to ISPs are very generally stated and will likely require judicial interpretation to provide guidance. ISPs have expressed concern that it should not be their role to police the Internet for copyright infringement, and that it is unclear what they need to do in order to comply with the new provisions. However, others have praised the anti-circumvention provisions as being more flexible that those in the US DMCA, and possibly a better model for Canada to follow when it modifies its Copyright Act to comply with WIPO. For the full text of the Bill, see: http://tinyurl.com/5junw3 For the full text of the current Copyright Act, visit: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html For related commentary, see: http://tinyurl.com/54rsrl Summary by: Tom Feather