Part 1 Amendments to Parts 1 to 5 of Copyright Act 1994
CHRISTOPHER FINLAYSON (National)
: There are five issues I want to consider in Part 1, which deals with a number of very important matters. The first issue will be the meaning of the term “communication work”, the second issue will be the position of persons known as “educational resource suppliers”, the third issue will be the parallel importation of films, the fourth issue will be the position of Internet service providers, and the fifth issue is known as the “section 88” issue. Earlier in the day the Minister very kindly provided me with the Supplementary Order Paper on which she has set out the amendments she proposes. What I will do, as I go through the various issues I wish to discuss, is touch on the amendments that she wishes to make.
The first issue is the new definition of “communication work”. I refer back to my first reading speech in which I talked about the development of the Copyright Act since the first Statute of Anne in 1712. The first type of work that was protected was literary work, and over the years different types of works have been given protection; for example, dramatic works, musical works, film, and, most recently—many years ago, actually—the introduction of provisions to deal with protection of broadcasts and cable programmes.
In a sense this bill is very important because it tries to pick up terminology that is appropriate to the Internet age. When the Copyright Act 1994 was passed it was either the dawn of the Internet or just before it, and, of course, in the 14 years since, the Internet has become established as a fundamental part of the way we all do business. So the issue the Commerce Committee was faced with was to try to look for a term that would be—[Interruption]
The CHAIRPERSON (H V Ross Robertson): Would the member who has a cellphone on please turn it off.
CHRISTOPHER FINLAYSON: I will go back to the dawn of the Internet age and simply say that the aim—and it is a perfectly reasonable thing to do—has been to find a term that is technology-neutral, because, as far as possible, copyright needs to be expressed in broad terms, to take into account the march of technology. That is what has happened here. It is proposed that the terms “broadcast” and “cable programmes” will be deleted, and throughout the Copyright Act there will be reference to the new term, “communication work”. The verb “to communicate” is also defined. I have never been totally convinced that the move to this particular terminology is necessarily the best move, but I have to advise the Committee that National will not oppose this change. It is one of the many matters that will need to be looked at again when there is, hopefully, a full review of copyright law in a few years’ time.
The concern I have had—and I acknowledge that the Supplementary Order Paper tries to address this issue—is what appears to be the creation of a new property right to reward the making available of a work. Under the previous law, and for various categories of copyright work, some level of creative activity was required before copyright protection could be conferred. As I said, I think the Supplementary Order Paper tries to address this issue by deleting the phrase “making available by a communication technology”, so that “communication work” will now mean the transmission of sounds, visual images, or other information. If the changes introduced by the Minister’s Supplementary Order Paper address my concern, then so much the better, but I just have my doubts about whether it will.
I would point out one other minor point on this issue to the Minister. I do not know whether the Supplementary Order Paper actually changes the meaning of the word “communicate”, which will still mean “to transmit or make available by means of a communication technology”, and for good order and consistency perhaps that needs to be altered, as well.
The second issue I wish to discuss concerns the new definition of “educational resource supplier”, and perhaps the best way of dealing with this issue is to talk about section 48 of the Copyright Act, which provides the educational exemption in relation to certain categories of work—in this case, broadcasts and cable programmes. As I said, when the amendments are passed, we will be dealing with recording by educational establishments of communication works. Clause 28 will change section 48 to provide for that, but it also introduces this additional term of providing some protection for educational resource suppliers as well as for educational establishments. This was a matter that I do not think was looked at by the Commerce Committee, but I can say that the National Party understands why the Minister is seeking this amendment through her Supplementary Order Paper and we will support that; it seems to make perfect sense.
So, moving along then, I come to the next issue, which is that of parallel importation. This is a rather important one. Section 35 of the Copyright Act deals with the issue of secondary infringement of copyright, and one way in which one can infringe copyright is by importation. So, for example, if one brings in a film, that can be called parallel importation and can attract copyright infringement.
Clause 18(2), as amended by the Minister’s Supplementary Order Paper, attempts to amend section 35 so that there will be infringement of copyright in a film to which subsection (6) applies—that is, the existing subsection (6)—if a person imports a copy of a film into New Zealand within 9 months of its first being made available to the public, and knows that the film is imported into New Zealand and is being made available to the public; if the person seeking to import the film is not the licensee of the copyright in New Zealand; and if that person imports the film into New Zealand other
than for that person’s private and domestic use. That is the proposal that has been put forward in the Minister’s Supplementary Order Paper. The National party understands that and will support it. Section 35(6)(b) of the principal Act refers to films that are “produced principally for the cinematic release, or copy of that film,”, so that is the category of work one is dealing with. So that matter can be resolved satisfactorily.
The next issue is a very important one and was the subject, as I understand it, of extensive submissions to the Commerce Committee and of extensive debate in that committee. It concerns the position of Internet service providers. I am referring to the amendments contained in clause 53 of the bill.
Perhaps a little background is required, and I hope that people do not think I am going on and on. But the point is that there needs to be the provision of what are often referred to as Internet service provider safe harbours. Some jurisdictions have made it plain that safe harbours for Internet service providers were meant to ensure that development of Internet-based business would not necessarily be chilled by the threat of liability for copyright infringement; it was done in various ways in the United States, for example, prior to the implementation in 1988 of the equivalent US statute. Case law had established a number of broad principles confirming Internet service providers’ immunity from secondary forms of copyright infringement, and I think that the same applied basically to the European Union commerce directive.
We have taken a slightly different route from other jurisdictions. It seems to me that the new regime, created by clause 53, has created a new statutory tort, and that is quite a different way of dealing with the issue. In the United States, Australia, and the European Union, equivalent provisions limit the scope of liability. In contrast, what we have here—and I refer particularly to new section 92C(2), inserted by clause 53—is a provision stating that the Internet service provider does not infringe copyright in the work by storing the material unless certain things occur, which are set out in the bill.
Again, I do not know whether this is necessarily the right model, but the National Party has had a good close look at it. We will not oppose what the department has come up with for the purpose of this bill. I still do not think that new subsection 92C(4), in clause 53, is required. It seems to preserve the right of the copyright owner to seek injunctive relief against the Internet service provider. In my opinion—and I have always maintained that this is largely redundant—there is no need for this provision if the Internet service provider is already to be liable for copyright infringement.
So that is the regime that has been established. I have my doubts as to whether it is the right regime but we will go along with it.
There have been a number of amendments. The Minister knows, and I certainly know, that we have all had approaches from various commercial entities, as a result of which the Minister has come up with a number of amendments. We will support those. The first makes some changes to new section 92A, and I need not go into that in any great detail. We support what is being done there. Essentially, it is putting back into place what had been there before the bill went to the select committee.
The second issue concerns section 92C, where there is to be the addition of new subsection (2A) about the sorts of things that a court may take into account when determining whether there will be liability for the Internet service provider. I think that that amounts to an improvement over what the select committee said, so we will support that. The third issue concerns the requirements of the notice of infringement, in section 92CA, and I think those changes are fine. The amendment means that a notice to be served must—“(a) contain the information prescribed by regulations made under this Act;”—and of course that has not yet happened—“and (b) be signed by the copyright owner …”. So we can understand that those improvements will be desirable.
We also agree that section 92CB should be deleted, because I always thought that it was rather heavy-handed and went too far. So they are the changes for Internet service providers, and I can advise the minister that we will support her Supplementary Order Paper because we think those changes are quite helpful.
The final issue I want to touch on—and I know that Mr Copeland will wish to speak about this—concerns section 88 of the Copyright Act, which deals with the reception and transmission of broadcast in a cable service programme. There are three positions before the Committee. The first, as I understand it, is the Government’s position, which is to repeal section 88 in its entirety. The second, as evidenced by the majority of the select committee, is to keep section 88 as it is at least until there can be a full review of the Act. The third is Mr Copeland’s amendment, which deals with cable television operators’ right to rebroadcast free-to-air television. As I understand it, Mr Copeland’s amendment seeks to extend section 88 to satellite broadcasters like Sky.
National supports the status quo and believes that the various operators can probably come to a commercial arrangement once their existing contracts expire in a couple of years, so I do not think that we are too happy with that amendment, and we will not be supporting it. I know that the amendments proposed in the Minister’s Supplementary Order Paper are of a technical nature, but I think that they improve the legislation, and that is why the National Party will support them. I have a couple of things to say about various aspects of Part 2, and I thank you, Mr Chairman, for the opportunity to have one call on these issues. I will leave it there.
GORDON COPELAND (Independent)
: I want to speak exclusively to clause 49 in Part 1, which, as Chris Finlayson has mentioned, is all to do with the new provision in section 88 of the Copyright Act. The Commerce Committee has, by a majority, reinstated section 88 of the Copyright Act 1994 and, as I read the Minister Judith
Tizard’s amendment on Supplementary Order Paper 193, I see that the Government may now also have come to that position. I am sure the Minister will take a call to clarify that matter for me if I am wrong.
As Mr Finlayson said, the amendment in clause 49 is to reinstate the existing position—to allow the reception and retransmission of broadcast in a cable programme service. However, to do that it was necessary to add new subsection (4) in order to preserve a number of technologically specific terms from the 1994 Act that will not be used elsewhere when the Act has been amended.
My Supplementary Order Paper 154 will amend section 88 to allow the
recommunication of free-to-air television and other kinds of unencrypted communication works to include broadcast by satellite in addition to cable. In other words, it is simply to modernise the provisions of section 88 to take into account the technological upgrades and improvements from cable to satellite that have occurred since 1994.
I must say that I am very surprised to hear the announcement tonight for the first time that National members will not be supporting my Supplementary Order Paper. I guess that it just reinforces again that in some areas they are not a very progressive outfit, because everyone in this Chamber but they would probably know that satellite communication is the mode now used for pay-as-you-view television, which was formerly exclusively on cable in 1994. I think that for National members to just say that they do not agree with my amendment without giving any rationale is typically weak in the extreme.
My amendment will do the following things. First of all, it is consistent with the Government’s aim of encouraging the uptake of digital television. It will facilitate the
recommunication of free-to-air television on digital, satellite, and other means. It is also consistent with the Government’s aim of making publicly funded programmes shown
on free-to-air television channels as widely available as possible. I wonder, as a point of diversion, whether those running the new TVNZ 7, which commenced broadcasting on Sunday with
The Kingmaker Debate, will find it very strange that the audience for that will be very limited because people have not yet got the right box to put on their TV sets to see that programme. I cannot see how that could possibly be consistent with the Government’s aim of making television in New Zealand as widely available as possible. Obviously, if it is to be made as widely available as possible, then it should be able to get into as many homes as possible. That is what is happening under the present arrangements, as free-to-air programmes are rebroadcast over, say, the Sky network, or by
TelstraClear and domain streaming on the Internet, so that as many people as possible can see those programmes.
My amendment is also consistent with improving the coverage of free-to-air television, as digital satellite
recommunications in particular are able to reach into areas where traditional terrestrial communication is very difficult. That particularly applies to a number of areas in New Zealand. I think of Northland, where the majority of people living there are Māori. At the moment they get their TV, be it Television New Zealand (TVNZ) or TV3, through the Sky platform. Potentially this bill, which is old-fashioned and is limited to cable only, will bring that to an end. The existing provision for copyright holders to establish licensing schemes for
recommunication will also be retained.
Those are the bare bones of my amendment. It does not, as some have claimed, require TVNZ to provide free retransmission of a programme to, say, Sky or
TelstraClear, although, of course, TVNZ is perfectly free to do so. TVNZ has a commercial incentive to do so, as, by enlarging its viewer audience, at the same time as it boosts its ratings it boosts its advertising revenue, which—as its representatives confirmed to the select committee—flows directly from its ratings. Therefore, the larger the audience is, the larger the bill, and the larger the advertising revenue will be. So TVNZ already has a very significant commercial imperative from which it would want to drive this.
TVNZ programmes continue, by the way, to be rebroadcast in their entirety; it is not as if TVNZ or TV3 lose the ownership of those programmes. Every part of a programme, including all the advertising associated with it, is rebroadcast. It is all rebroadcast in its entirety and the ownership of that programme and all the advertising and advertising revenue from it continues to belong to the originator of the programme, be it TVNZ or TV3.
So it is quite wrong to say that my Supplementary Order Paper will compel channels to provide those programmes free of cost or even compel them to provide them under certain conditions. It will not. Rather, channels are able to establish a licensing scheme for the
recommunication of their works. The licensing scheme will cover retransmission. Therefore, any person wishing to retransmit will have to do so by the terms of that scheme and will have to pay any fee prescribed. That is just normal, straightforward copyright law. All the statutory provisions needed for such licensing schemes are already provided in the Copyright Act. They allow the copyright owner or any person acting as agent for the copyright owner to establish a scheme, tariff, or other arrangement for the licensing of copyright works. This scheme simply has to set out the situations in which the operator of the scheme is willing to grant copyright licences and the terms on which copyright licences will be granted in those situations. To provide some oversight, terms of proposed operating licence schemes can be referred by the operator or a prospective licensee to the Copyright Tribunal for review. The tribunal would consider whether the scheme and its conditions were reasonable. A person who
has been refused a licence under a licensing scheme may also refer the matter to the Copyright Tribunal.
I trust that that further information will assist to clarify the situation. Clearly, if TVNZ or any other free-to-air broadcaster should establish such a licensing scheme, then copyright is fully protected. I suspect that TVNZ, not to mention perhaps Mr Finlayson and the National Party, has not actually grasped that central reality, although I am very surprised at Mr Finlayson’s comments, because until very recently I was assured that National did grasp that reality and would, therefore, be supporting my Supplementary Order Paper. But, not for the first time in my experience, those members have suddenly decided today to do something rather different.
Just to be clear about the matter, if we refer to my Supplementary Order Paper 154, we see that subsection (3) of the proposed section 88 specifically states: “This section does not apply if or to the extent that licences authorising the reception and immediate
recommunication of a communication work and any work included in the communication work are available to the person under a licensing scheme and the person carrying out the
recommunication knew that fact.”
I say in simple terms that I know of no reason why my Supplementary Order Paper would not be acceptable to the entire television industry in New Zealand. It is an attenuation of a normal process, and I have yet to fathom or obtain any reason for, or explanation of, why it should not happen. Sadly, sometimes this Committee in its haste or maybe even for political reasons tends to miss the point. I think I am likely to find when the vote is taken on my Supplementary Order Paper that that situation sadly applies tonight in relation to this particular matter. Thank you.
DAVE HEREORA (Labour)
: Kia ora, Mr Chair. I take the opportunity to take this call in the Committee stage of the Copyright (New Technologies) Amendment Bill. There was one particular area that as a member of the Commerce Committee I took interest in, which was the provisions relating to educational establishments, how libraries could be using that material for the use of students, and how those issues were formulated.
Before I talk about that I just want to recapture some of the intentions surrounding the bill. Of course, the bill is amending the Copyright Act 1994 and promotes a legal framework that guides the protection and use of copyright material. Obviously, that is of major interest within
Māoridom at this point in time, which is watching very carefully how those protections may proceed in the future. The bill is part of a wider reform process to ensure that our intellectual property legislation is up to date, relevant, and takes account of international developments. It will also ensure the effective operation of the Copyright Act in the face of emerging technologies.
The bill creates a more flexible framework for technology to operate in the Copyright Act by redefining certain terms contained in the Act to make them more technologically neutral. The main provisions of the bill address concerns regarding the scope of the definition of copying; give a copyright owner a technology-neutral right to control distribution, including email, peer-to-peer, and other digital forms of communications; and introduce a definition of Internet service provider. There is also a range of provisions that limit Internet service provider liability for copyright infringement in appropriate circumstances. Therefore, it clarifies and amends the exceptions to copyright owners’ inclusive rights, particularly in relation to fair dealing, library, archival, educational use, and time shifting; updates the technologically specific language currently used; and introduces the communication right for performers so they can maintain a fair commercial return.
I thought it was important just to revisit some of the values and principles surrounding the intention of the bill. I now move to the issue I raised earlier, in terms of
the new provisions relating to educational establishments. The Act provides a number of specific exemptions under certain sections for educational establishments to copy works. These provisions are currently written in technologically neutral terms and allow the permitted activities to be undertaken by digital means. Clause 24 of the bill, amending section 44, is designed to clarify the conditions under which an educational establishment can supply copies of works in a digital form, including restricted remote access via the Internet to authorised students, with supply of copies consequent to the permitted copying. Clause 25 adds a new section 44A to enable educational establishments to basically store websites electronically for educational purposes for a limited period of time, linked to the duration of a period of time for which they are relevant to the teaching of the relevant course. This exemption would enable access to Internet material that is subsequently changed or deleted and has ongoing significance for teaching purposes but the exemption would be subject to the adequate identification of the material and the course for which it is stored.
The select committee amendment under clause 24 clarifies that copies of works in digital format made under section 44 can “be communicated to a person who is a student or other person who is to receive, … or has received, a lesson that relates to the work.” Ideally, under clause 25, it also clarifies the conditions under which an educational establishment would be allowed to store pages from a website under the new section 44A. In particular, the section was amended to make the requirement to identify the author dependent on the author’s identity being known. Often, the authorship of works available on the Internet is unidentifiable. Therefore, requiring authors to be identified in every case is unrealistic. Clause 25 is also amended by deleting in section 44A(1)(b)(iv) the requirement that an educational establishment must identify “the course of instruction for which material is stored;”. Such a requirement was identified by the committee as being impractical, given that the website material copied may be stored for use in many courses.
Issues raised with the new educational establishment provisions are that copyright owners would like to see clause 24, amending section 44, to add new limitations on the ability of educational establishments to copy material for educational purposes. For example, they consider that section 44 should not permit the whole of a work to be copied for educational purposes. That is quite important, because if that is the case, then under any circumstances without a licence—furthermore, where part of a work is permitted to be copied—the portions of the work that may be copied for educational purposes under this exemption should be further limited. In effect, copyright owners would like schools to pay more for using works protected by copyright. That was the issue raised by some of the submitters. Conversely, educational establishments would like to see the scope of section 44 expanded by removing some or all of the existing restrictions under which a work may be copied for educational purposes without a licence from copyright owners. In effect, schools would like to pay less for using copyright material.
Quite frankly, the response in relation to the aim of the bill was not to review or change the existing balance between the rights of copyright owners and access for educational establishments; rather, it was to ensure that this balance is maintained in a digital environment. I thought it was important just to revisit again that issue, because it is important that we do not lock up our libraries and institutions into having to reduce the amount of information they can rely on to provide for our students. Kia ora.
DAIL JONES (NZ First)
: I was not on the select committee when the submissions were being heard—I was not even a member of Parliament at the time—so my knowledge of the select committee process is non-existent. But I have taken the opportunity of reading the second reading speeches, which have been very, very helpful.
I must also thank Mr Finlayson for his very detailed, helpful, and informative viewpoint on the Copyright (New Technologies) Amendment Bill itself and on Supplementary Order Paper 193.
New Zealand First wants to make sure that it keeps up with technology. Someone was not sure whether the Internet had come into existence in 1994. I think in 1994 we were probably all still using Commodore 64s and just moving to using more updated IBM computers and suchlike. There has been a remarkable explosion of technology in the last 13 or 14 years. Some of us have even come to grips with things like
iPods of various descriptions. I am told—and after reading the second reading speeches I know—that I am even possibly committing an offence when I put a CD on to my iPod. That might not be legally allowed. Well, it is about time we had some legislation that brings matters up to date.
There has been criticism of the bill to the effect that more could have been done. That is always the case with legislation; more always can be done. But usually when we try to do more and more, the bill tends to languish in the Minister’s office for longer and longer, and nothing ever actually happens. Half a loaf is better than no bread at all. It is very interesting to read the legislation and to see how matters have been brought up to date.
The issue of the proposed amendment by Mr Copeland has been raised. New Zealand First will not be supporting Mr Copeland’s amendment. Effectively, New Zealand First will be supporting the bill as it has been reported back. We will be supporting the amendments. It all makes sense, and if I was in any doubt at all, I am not now, thanks to Mr Finlayson’s comments.
Hon JUDITH TIZARD (Associate Minister of Commerce)
: I thank members of the Committee for the very constructive approach that has been taken to what is—as Mr Dail Jones said—rather delayed legislation.
This legislation affects myriad interests of both New Zealanders and people internationally who are owners and users of copyright that may have been created or is available in New Zealand. It is a vast, three-dimensional jigsaw that has huge effects on a range of people whom we may be able to predict, but also sometimes on people whose interests are not predicted in this legislation. I think it is useful that we try to take a very non - party-political approach to this legislation, and I compliment the Committee and the select committee on the attempts that have been made to get to grips with this very technical, difficult, and conflicting legislation.
I particularly want to thank Chris Finlayson. I thought his contribution was very constructive. In the second reading of this bill he called for a full review of the Copyright Act, and I reiterate my point that because of the complexity of the issue and the vast number of people and interests involved, this legislation—this whole area—has to evolve. People’s ordinary lives, businesses, innovations, and research depend on our being predictable in this area, whatever we do.
The first issue that Chris Finlayson raised related to the new term “communication work”. The new category of “communication work” would not create protections for transmissions regardless of any creative input, because as in any other type of copyright the work is still required to be original. The current definition in the bill reported back by the select committee would extend protection to signals that carry content in interactive or on-demand communications, but that was an unintended consequence, which is addressed by Supplementary Order Paper 193. I hope that reassures Chris Finlayson on that particular issue.
My colleague Dave Hereora made a very useful contribution relating to the new area of “educational resource supplier” in Supplementary Order Paper 193, and I agree that this is akin to what we understand libraries had done in the past and will do in different
ways in the future. Where there are electronic or digital communications, programmes, or creations of whatever sort, it is necessary for our schools, universities, and research institutes to have access to those. Increasingly, they are available only in digital format; they are not available in book form. One of the people who has been consulted on this legislation said that in his particular area of research anything in a book is probably 10 or 15 years out of date, anything in a magazine is probably 3 or 4 years out of date, and papers on the Internet are the only way of keeping current in his field. We have to recognise this, in terms of teaching our new curriculum and making sure that New Zealanders have access to the most recent innovations, thoughts, and projections. The new category of “educational resource supplier” makes it clear that the intermediary may be a company or an organisation that is not in the first instance what we understand to be a library.
Supplementary Order Paper 193 deals with a range of other issues, and I will deal with those more specifically. In terms of the limitations around protections for Internet service provider organisations—those that provide Internet supplies—there had to be a provision and a process whereby information that was put up on the Internet in breach of copyright law could be taken down. I recognise the Green Party’s concern. Its members were particularly concerned about the issue of the use of copyright material in fair comment and/or satire or parody. We have been very happy to give an undertaking to Nandor Tanczos, the Green spokesperson in this area, that we will conduct a review looking at what happens particularly in Australia, which has recently changed its legislation to come into line with that of the United States, I think as a result of its relatively new free-trade agreement with the US. The Australian legislation makes provision for a specific exemption for copyright infringement for the purpose of parody and satire. I understand that it follows the US law. There is currently no specific exemption in the United Kingdom, although there is a recommendation to create an exception to copyright for the purpose of caricature, parody, or pastiche, and that was made in the 2006 UK
Gowers Review of Intellectual Property. The US has a more general “fair use” exception, which would probably mean that in most situations parody and fair comment would not amount to a breach of copyright. We want to look as these examples carefully, and any amendments required to implement any changes arising out of that review, which I assure members across the Chamber will be a public discussion, can be included in the next proposed amendment to the Copyright Act. As I have already indicated, this bill is one of a series as we evolve copyright, and the specific issue that so far we have agreed to include in that legislation is around the commissioning rule. I hope that that may give some reassurance to the Green Party on that issue.
The Green Party members’ concern around format shifting more generally was that they wanted to see video content included. We have made a policy decision not to do that. I think it is generally agreed across the film and video industry in New Zealand that it would prefer more protection. We recognise, as Dail Jones said, that like much of the advanced world much of New Zealand has moved on to forms of reproduction for music and/or video or films in some cases where format shifting is necessary. But we do not think it is useful to say that people may make or pass on digital copies, because of the economic damage that can so easily be done. As we saw, one unscrupulous employee of a post-production house took a copy of
Sione’s Wedding. Huge economic damage can be done to film makers, who in New Zealand are pretty vulnerable; they do not have the back-up of big studios or big profits from earlier films. No matter how much we would like to believe otherwise, New Zealand film—having made an extraordinary difference to our tourism industry, for example—has not yet got the
economic robustness to cope with the sort of damage that can quickly be done by the ability to transmit digital copies.
Gordon Copeland spoke about the issues around the right to replay free-to-air television, and I thank the Committee, and the select committee before it, for the consideration that has been given to that. At present it can be dealt with commercially. I am very opposed to enshrining any right to rebroadcast. I agree with Mr Copeland that as a Government and as New Zealanders we desire to see New Zealanders having the greatest access to the greatest amount of information, but I think the idea that we could enforce a commercial right over an unwilling seller would be abhorrent. So I am opposed to the extension that Gordon Copeland’s Supplementary Order Paper would give to section 88, and I recognise that this is an issue that members will have to deal with in greater detail when we get to the point where there is a clear choice about the way that free-to-air television should be rebroadcast in a digital format.
I thank members for their serious comment on this bill. We have several more parts to consider, so I will leave my comments at that. I am very happy to have a debate in this Chamber tonight on this legislation. One of the healthier things we do in the House is to deliberate when people are trying to find a way forward, rather than coming in here with predetermined views that are sometimes, as Mr Copeland bewailed, political. Of course, politics is how we do things in this House, rather than shooting each other, and I think that is a good thing.
GORDON COPELAND (Independent)
: I want to take a brief call in response to the further comments from the Associate Minister of Commerce, Judith Tizard, in relation to my Supplementary Order Paper 154, which I gave a very full—I think—and complete explanation on earlier to members. She has said that she is deeply opposed to any extension of the current section 88—namely, I guess, from cable to satellite—but without actually giving any background or rationale for her position. In that respect she is at one with Mr Finlayson, who likewise gave no rationale or explanation as to why he believes that my Supplementary Order Paper on section 88 is misplaced.
I think that is a rather disappointing standard of debate on a serious matter. The questioning that the Commerce Committee subjected Television New Zealand (TVNZ) to in relation to this issue, when it came to the select committee for its financial review, subsequent to the second reading of this bill, was quite complete and detailed. It was absolutely clear to all of us in the select committee that TVNZ was under the complete misapprehension that my Supplementary Order Paper obliged it in all circumstances to allow its programmes to be retransmitted by, say, Sky or
TelstraClear for free. That was the whole objection. We pointed out that, no, TVNZ would get an extra revenue stream from it because of the higher ratings and the higher audience numbers, and both the chairman and the chief executive agreed with that. They said “That’s right, we do. We get an extra revenue stream.” We explained that the ownership of the programme remains with them at all times because it is being retransmitted only—there is no transfer of ownership, it is still theirs, and all the advertising revenue is still theirs. They agreed with that. But they had no understanding at all that my Supplementary Order Paper proposed an alternative—namely, a licensing scheme under which they would be able to charge a fee to Sky or
TelstraClear. They had no understanding of that, at all.
So I am disappointed that their misunderstanding, which is factually incorrect, seems to have somehow conveyed itself to the members of both Labour and the National Party, who, on the basis of this complete misunderstanding, have said they are not going to vote for the Supplementary Order Paper, but that at some time, when they get round to it, they will look at the whole matter. What is going to change between now and the future? I have no idea. Really, I just want to say I am rather disappointed that such a superficial result has come about. There has been no justification or explanation as to
why the particular view against my Supplementary Order Paper, which is sane and reasonable, has got to the point where people have decided it is not workable, and that, somehow, the issue needs to be reviewed in the future. I think that is the ultimate cop-out. We hear time after time “It is too complex. We will do it later.” No, it is not complex; it is very simple and we should be doing it now.
Dr JONATHAN COLEMAN (National—Northcote)
: In response to Mr Copeland’s comments about his Supplementary Order Paper 154 I say that National members will not be supporting it because Television New Zealand (TVNZ) and the free-to-air broadcasters all have a particular business model under which they operate their businesses. Let us face it, they are commercial businesses. They are in competition with Sky, they are in a commercial battle and a war with it, and National members are pretty confident that the two parties are going to be able to reach a commercial arrangement without Government interference. That is the whole point of our not supporting Supplementary Order Paper 154.
We could take it further than that. If a person runs a business with a certain business model and wants to have control over—if it is in the broadcasting sphere—the content, that person wants to be able to say: “Look, this is my content. I am in charge of where it goes and how it is distributed.” Why on earth would it be fair for commercial rivals to be able to take that content and distribute it from their own platforms? Whatever we might say are the perceived benefits for TVNZ, TV3, et al. through that arrangement, we have to say that the content is their intellectual property and it is their right to distribute it as they see fit. We have two broad commercial groupings here. We have Sky on the one hand and the commercial free-to-air broadcasters on the other hand. It is in both of their best interests for Television One, TV2, and TV3 to be available on the Sky platform, and the heavy hand of Government regulation is not needed to make that come about. I think we can be perfectly confident that those two groupings are going to reach a commercial arrangement without the Government once again getting involved with its sticky fingers and turning this into a regulatory mess.
That is the crux of the argument. The free-to-air channels have control over whom they broadcast to and on what platforms they are carried. They should have that right and we are confident that a perfectly workable arrangement will be reached between the free-to-air broadcasters and Sky television that will enable those channels to stay there. There is a common misconception—I say to Mr Copeland—that just because something is free to air it is—
Hon Judith Tizard: It’s free!
Dr JONATHAN COLEMAN: —free. No, it is actually intellectual property that is owned by the people who broadcast it. Their business model is predicated on advertising revenue and on control of their signal, and just because the content is produced and is out there does not mean someone should be able to pinch it. Take the converse argument: how would people who had a pay television model like it if suddenly the free-to-air broadcasters could pinch their signal—say, they pinched Sky Sport and put it on FreeView? There would of course be a huge hue and cry.
So I think we have to leave them to sort it out. I think it will be sorted out, and I think it would be very unlikely that Television One, TV2, and TV3 were taken off Sky, because that would not be in anyone’s interest in the long term.
MARTIN GALLAGHER (Labour—Hamilton West)
: In speaking on Mr Copeland’s very valid Supplementary Order Paper, I find myself in the somewhat unusual position of agreeing with the previous speaker, Dr Coleman, in terms of the concept he has put up. The logic of it—to explain it really slowly—would be that we would have a situation whereby FreeView could go in and grab Prime Television and suit itself.
In terms of a commercial model—of intellectual property—it is very obvious what the previous speaker said. Because it is “free view” and free-to-air, yes, there is a commercial model. Some of the “free view” will certainly consist of so-called public service channels and community channels. Other parts of “free view”, in the sense of the free-to-air bit, will very much consist of commercial businesses that are using FreeView as a platform but are being paid for, in terms of commercial reach, through advertising, sponsorship, and other means. They as a broadcasting business—just as with public television—should choose which platform to use. I agree with Dr Coleman in the sense that I think some of those issues will be sorted out commercially. There will be a point where appropriate arrangements are made.
I am not sure whether the previous speaker would agree with me on this, but I was reading somewhere in one of the papers about the so-called FreeView Plus model. Frankly, why should Sky or anyone else just be able to beam in from wherever and be the only pay TV model in town, subject obviously to FreeView offering the vast majority of its channels in terms of the free-to-air model?
And what do we mean by the free-to-air-model? We mean that it has either New Zealand On Air funding, etc. or advertising funding and is broadcasting appropriately. But certainly there could be a FreeView Plus model whereby FreeView might want to charge for certain products in the future. That, again, would be a degree of healthy competition between that particular consortium and Sky.
Obviously, if we look at regional television we see that we certainly want to encourage it. Stratos, for example, is now taking a range of regional television and putting it up on the platform. We certainly want to have a situation whereby those regional operators, subject to financial assistance to get up on the satellite platform or on to terrestrial television, should ultimately be able to make the choice.
For example, I was with David Bennett the other day, being interviewed by tvCentral, which covers the Waikato and the Bay of Plenty. It is based in Matamata, and it is an amazing story, dare I say it, of incredible enterprise and a lot of faith and hope. It is a regional television channel that is now providing for us in the Waikato and Bay of Plenty a genuine family-viewing product.
Quite frankly, in terms of
tvCentral’s mix and its product, it ultimately, I say to Mr Copeland, should have the choice, the business choice, as to whether to negotiate with Sky and go up on that particular platform. An equivalent example would be a situation with Burger King and KFC. Burger King could come in and say it likes the product of the outfit down the road, and just grab the patent, the product, and reproduce it.
So without further ado I say that although I certainly respect the sincerity of Mr Copeland and the point of view he puts forward, we on this side of the Committee—and I think this is reflected in the Minister’s view—could not support that particular Supplementary Order Paper for the simple reason that the broadcaster itself should have the ultimate choice, relatively speaking, as to which platform to go on.
- The question was put that the amendments set out on Supplementary Order Paper 193 in the name of the Hon Judith Tizard to Part 1, and the following amendment in her name to clause 36, be agreed to:
to omit from new section 56A(1)(d)(i) “and” and substitute “or”.
The CHAIRPERSON (Hon Clem Simich): The amendment set out on Supplementary Order Paper 154 in the name of Gordon Copeland to clause 49 is out of order because it is inconsistent with a previous decision of the Committee.
- Part 1 as amended agreed to.
Part 2 Amendments to Parts 6 to 11 of Copyright Act 1994
Dr RICHARD WORTH (National)
: The Copyright (New Technologies) Amendment Bill, which National supports, is in two parts. The first part has a number of amendments to the first part of the Copyright Act, and Part 2 is concerned with amendments to Parts 6 to 11. I want to spend the short time I have in talking about technological protection measures, or “TPMs” as they are called in the industry.
Before I do that, though, I just make the comment that it is scarcely satisfactory that a Supplementary Order Paper that touches this and a number of other issues has been delivered to us to see just today. It is not easy to pick up complex legislative change and to be satisfied that what has been proposed by the draftsmen is in fact truly appropriate in the particular context of copyright law. I say that because this is not perfect legislation. I think we would all acknowledge that, and that is why I welcomed those in the Chamber who spoke about something akin to the provisions included in the Evidence Act that would require the Government to carry out a review within a specific time frame to see this legislation improved. This is piecemeal legislation. It is certainly better, but it is not as good as it might be.
If I talk about technological protection measures, the starting point is clearly clause 89. There, a number of new sections—sections 226 to 226J—are substituted. Perhaps I should start by talking about technological protection measures in a more general way. They are a means to combat the ease of unauthorised reproduction and distribution that digital technology provides. Examples of technological protection measures include the content scrambling system used by DVD manufacturers to control the types of devices and software that can access a DVD’s content, and the digital rights management systems used in software to control the copying and distribution of content files. If we look at what the law is, we see that the Act allows copyright owners to take action against people who supply or manufacture devices, means, or information specifically designed to circumvent technological protection measures. This applies only to technological protection measures that prevent copyrighted material from being copied.
The bill before us tonight will extend this right by allowing copyright owners to take action in respect of devices, means, or information, where circumvention could enable infringement of all exclusive rights, not just the right of copying. An example of that is that the bill will include infringement of the communication right that extends to
webcasting. The act of circumventing the technological protection measure will not itself be prohibited, and the offence provision introduced in the bill for commercial dealing in circumvention devices, means, and information is intended as an additional deterrent for such activity. There are also new provisions to enable the actual exercise of permitted acts where technological protection measures have been applied.
It is, of course, a reality that in the online world, protected works can be copied perfectly, instantaneously, and in multiple copies. They are then disseminated around the world with the click of a key, so it is critical for copyright owners to be able to use technological protection measures to implement the terms and conditions of use that consumers have paid for, and to protect their works against such easy and unauthorised copying. The World Intellectual Property Organization treaties therefore contain a provision requiring that technological protection measures be given effective legal protection against circumvention, and it is right to say that a number of groups are concerned that the way in which the bill has been reported back from the select committee—and I will come to the impact of the Supplementary Order Papers in a moment—will mean that New Zealand will diverge from what other countries have been doing in this area. I would say that that is most undesirable. Those groups go so far as to say that if the bill is enacted as reported back by the select committee, it will not
provide any meaningful protections for technological protection measures or any legal certainty regarding enforcement.
My take on what the particular concerns are, are really these. The concerned groups say, first of all, that the definition of a technological protection measure is poor. The critical thing, of course, is to protect access control. For example, if a person can gain access from a subscription, one has to be able to deny access if the person is not paying the subscription. They are also concerned about the definition of prohibited circumvention devices, and I think a minor change is needed to make the current formulation more acceptable. Then there is the very vexed and tricky question of the knowledge element for prohibited conduct. In the bill as reported back by the select committee, liability for trafficking in circumvention devices—which, as the legislation makes clear in the definition provisions, get around technological protection measures—is contingent on establishing knowledge and intention that the device will be used to infringe property rights. Those may be very difficult elements to prove.
Then there is the issue of exceptions from prohibitions, which is dealt with in new section 226D in clause 89. Those interested groups, which I think are genuine, are concerned that the regime is too permissive and would undermine the legal protection itself. So we had, just as one example, a submitter saying that the bill as amended would be inconsistent with the requirements of the World Intellectual Property Organization treaties and would make our law different from Australia’s. I think there is a concern that the industry does not want a black market in these devices and there is a case for a controlled approach like Australia’s.
I will turn briefly to the Supplementary Order Paper itself, which I have criticised because it came so late in the day. It cannot be good practice in a parliamentary democracy that we have seen in the course of an afternoon a number of amendments to this legislation. They are not textual amendments; they are actually substantive amendments across a range of fronts. I note in connection with Supplementary Order Paper 193, which is the Government’s Supplementary Order Paper, that there is clarification of the extent to which the rights of a technological protection measure issuer, under new section 226B, impinge on the exercise of a permitted act or the undertaking of encryption research. There is also clarification of new section 226E as to who may undertake encryption research.
So there we have this legislation. One is reminded of the curate’s egg—good in parts; not so good in other parts. I express the hope that when there is a change of Government in the next period, it will be a priority of the new Government that this legislation will be looked at more critically and in a more holistic way to produce a better outcome.
Hon MARK BURTON (Labour—Taupo)
: I am interested in the final comment made by Dr Worth. I suspect that this legislation will not last another century. It will probably need revisiting before that time, when he predicts there will be a change of Government. In the meantime I think there is much to do with the matter before the Committee.
I think we should remind ourselves that the purpose of the technological protection measures provisions is to give copyright owners a more comprehensive right relating to the protection of technological protection measures in response to technological developments and, travelling with that, the increased risk of piracy of copyright works in the digital environment. Central to this legislation is a recognition of the fundamental shift and change that have taken place in technologies. Copyright owners are increasingly using technological protection measures as a practical means to protect their copyright and, of course, to assist in the development of new business models.
The Act currently allows—and I think Dr Worth made some reference to this—copyright owners to take action against persons who supply or manufacture devices,
means, or information that are specifically designed to circumvent the copy protection and that are intended to be used to make infringing copies or copyright works. The copyright owner will have the ability to take action in respect of devices, means, or information where circumvention could enable infringement of all the copyright owners’ exclusive rights, not just copying. This is cognisant of the increasing importance of the rights of communication and the necessary incentives for the provision of online and digital services.
Clause 89 inserts into the Copyright Act new section 226C, which I do not think Dr Worth visited. The section is a criminal offence provision in limited circumstances where there has been large-scale commercial dealing in circumvention devices, information, or services, and is intended to provide a necessary deterrent. Dr Worth made passing reference to new sections 226D and 226E, which enable the actual exercise of permitted acts where technological protection measures have been applied. The provisions provide a person wishing to exercise a permitted act who does not himself or herself have the ability to circumvent, with the option of seeking assistance from the copyright owner or certain trusted organisations—so-called qualified persons. A “qualified person” means a prescribed library, an archive, or an educational establishment.
There were a number of Commerce Committee amendments that I will not go into in any detail at this time. But I am sure that as we progress through our consideration of this part there will be some discussion of those amendments and I may take another call to add to that general discussion.
CHRISTOPHER FINLAYSON (National)
: My call on this part will be relatively brief because Dr Worth has dealt in some detail with technological protection measures, but there are two issues that I want to raise. As we know, and both speakers have referred to it, the bill deals with technological protection measures but it limits the scope of these measures to those that protect established rights of copyright owners and, as the report of the Commerce Committee says, it specifically excludes the so-called access controls. That is an issue that we may need to revisit at some stage in the future. It is a very interesting issue.
It is perhaps necessary for the record to distinguish between the two types of technological protection measures. Technological protection measures that protect the traditional prerogatives of copyright owners are largely uncontroversial, and these are the ones we are dealing with tonight. They are measures that protect against activities that are traditionally part of the copyright—for example, reproduction, distribution, public performance, and the like. Technological protection measures that control access to a work are much more controversial. This type of technological protection measure is particularly important for musical works, for example, the enjoyment of which does not necessarily implicate the established rights of the copyright owner.
The commentary to the select committee report states: “We consider that the principal Act is not intended to protect access-control technologies that are used to price-discriminate or control the geographical distribution of works to the detriment of users in New Zealand.” However, it is interesting to note that the copyright laws of the United States and also, I think, of Australia, include provision for access-control technological protection measures in addition to the traditional ones I have referred to tonight. It is possible that this will be an issue that we have to revisit at some stage in the future if necessary to bring our law into line with that of Australia and the United States. That is the first point I wanted to make.
The second point is a matter that picks up on what Dr Worth said about eleventh-hour amendments. I said that I was grateful to the Minister for providing this material to me in the morning, but there is an issue that I wonder whether she will need to talk to
her officials about because I have been studying it closely for the last couple of minutes and I am just a little bit worried about it. The bill adopts a fairly standard definition of technological protection measures. In the United States in recent times, as I understand it, there has been divergent case law as to whether, if one misuses another’s password, that could amount to circumvention of a technological protection measure. As I understand it, password protection is now a standard mechanism accompanying the marketing of copyright-protected works. I have taken a good look at the definition of technological protection measure circumvention device. It means a device or means that is primarily designed for the purpose of enabling or facilitating the circumvention of a technological protection measure, and then of course there is the Minister’s amendment. I will read it as if the Minister’s amendment has been included “and has only limited commercially significant application except for its use in circumventing a technological protection measure”.
Now, the officials may know better than me, but from just looking at the words of those provisions I do not know that misusing someone else’s password will be caught by that form of words. It may be necessary to try to clarify this point tonight. I am sorry that this matter has come to my attention only this afternoon, but I have a problem with it and I wonder whether it should be addressed, given that password protection is a standard mechanism accompanying the marketing of copyright-protected work. Perhaps we need to try to deal with that issue tonight.
DAVE HEREORA (Labour)
: I also want to comment on the technological protection measures, just to recap the three main points surrounding that. The purpose was to extend the current technological protection measure provisions so that technological protection measures protect all exclusive rights under copyright—not just copying—and also provide an offence for commercial dealing in technological protection measures, circumvention devices, means, and information, and contain provisions to enable users to seek assistance from trusted institutions such as libraries and educational establishments, and to break technological protection measures in order to exercise permitted acts under Part 3 of the Act.
The key changes made to the technological protection measures at the Commerce Committee were to clarify that technological protection measures are designed for purposes other than the protection of copyright, for example, zoning on DVDs to enable market segmentation is not protected, and the provisions to enable users to seek assistance from trusted institutions were simplified so that a user no longer needs to apply to a copyright owner before he or she seeks assistance from a trusted institution. There is also a new ability for the class of trusted institutions to be extended by Order in Council. These amendments were made on the recommendation of the specialist advisers to the Commerce Committee.
Some of the concerns raised by the public were that that provision did not protect technological protection measures that controlled unauthorised access, that the provisions are out of step internationally, and that the knowledge requirement for the offence of commercial dealing in technological protection measure devices means it would be very difficult for a prosecution to be maintained. Those concerns were not directly linked to the select committee amendments. However, the previous concerns raised similar issues. Although some other countries provide broader protections for technological protection measures that restrict access, these provisions have generally been put in place in order to meet obligations under free-trade agreements with the US, as with Australia. The knowledge requirement in the offence provision is an important safeguard, given the level of penalty that a breach of the provision could give rise to. I thought it was important just to revisit that issue and to raise it this evening. Kia ora.
Dr JONATHAN COLEMAN (National—Northcote)
: I will take a relatively short call on Part 2 of the
Copyright (New Technologies) Amendment Bill, but first I will just follow up on what Dr Worth was saying. He was saying that should there be a change of Government—which of course there will be—we will have to revisit this legislation. Then the Hon Mark Burton said that the legislation would be revisited but gave a different set of reasons. I think that both had some elements of truth in what they were saying, in that the pace of technological change will really mean that copyright legislation—anything pertaining to the digital world—will have to be revisited on a pretty regular basis. Within a few short years a lot of this stuff—if it is not obsolete—certainly will not be up to date with current technological developments.
In the debate on Part 1 we talked about the issue of content shifting with regard to music. But the reality is that those issues now equally pertain to content shifting with regard to video. If one looks out there, one sees that there is a whole generation of people who are now watching their television very much along the lines of the iPod model. They are using programs such as LimeWire to download the latest television shows from America, to watch programmes such as
Desperate Housewives, or
Lost, and watch them on demand, when they want to watch them, and where they want to watch them. So the old model of broadcasting really is in its last days. It will not be long—it will be a matter of a couple of short years—before we are going to have Internet television widespread throughout New Zealand. What we need now is a broadband infrastructure that allows that to be provided. This bill, really, should have given an opportunity to future-proof some of the legislation in anticipation of some of the technological changes that we will see. So I would have to say, unfortunately, that a lot of this stuff is almost on the verge of becoming obsolete now.
Speaking about another thing, I was at a public meeting last night in my electorate, in Glenfield, and we were discussing the council district annual plan. There was a guy there with a hand-held video camera who was videoing the whole procedures. Fortunately I was not speaking, because when people nowadays have a video on one, one wonders what is coming next. But I can tell members that if that video went on
YouTube last night I do not think there would have been too many hits on it—it was pretty dry stuff. It was talking about waste sewerage systems through North Shore City. I went up to this guy and said to him: “What are you doing?”. He said: “Look, I can’t speak now; I’m actually making a movie.” I do not know how this stuff will appear, but I suspect this gentleman was probably making some sort of documentary on local government. It will have been made with a hand-held camera, and I would say that it will be on
YouTube pretty soon. When we look at clause 77, “New section 172 substituted”, we see that it talks about infringement by use of illicit recording made without a performer’s consent. This is obviously covering commercial performance, but the point I would make—and I think we are all probably going to face it in this election campaign—is that we are in an environment now where whatever we do or say is on video, potentially. It could be on
YouTube, and basically there could be a need for legislation in the future to give guidance in some of these circumstances. The general point is that a lot of this stuff could be obsolete in a very short time, or at the very least we would need further legislation.
Another point is that we have been talking about technological protection measures. That is a measure that obviously needs to be in the bill. Talking about content shifting from musical formats, it will be interesting to see whether manufacturers start building technological protection measures into commercially sold CDs, and then what the implications will be for people who try to override those and shift content from their CD player on to their iPod. I am saying that there will constantly be evolving technological developments that will throw up new situations that, I think, will need to be addressed
by this Parliament. It is certainly the area of digital technology and copyright law that I believe will keep this Parliament, the officials, and certainly anyone involved in those industries, intellectually and practically engaged for quite some time. So there may well have been a reason for these Supplementary Order Papers arriving early this morning, but it is a shame that they did. I think we will see a lot more change in this area of law over the years to come.
Hon JUDITH TIZARD (Associate Minister of Commerce)
: Again, I thank members for their mainly constructive views. Some of us are prepared to say that when this Labour-led Government is re-elected, I am sure, with the excellent support of parties that we have, we will happily go on with the evolutionary process. I am sure that the National Party in Opposition will find something constructive to do, but we look forward to that process. I genuinely thank members for their constructive approach on the
Copyright (New Technologies) Amendment Bill.
It is always regretful that at times, particularly because of the technical nature of this sort of legislation, Supplementary Order Papers cannot be produced too far ahead of time. We obviously have to go through a process of Cabinet considering any change to earlier agreed policy. Then we have the select committee process—and the Commerce Committee expressed some frustration at the technical nature of this legislation. I would argue that it is technical legislation because it is about a range of interests that sometimes compete. I agree with Dr Jonathan Coleman that we are attempting in this legislation to make it as technology neutral as possible so that we do not have to go on changing legislation because of assumptions that have been made in earlier times—like the use of film work or authors of work. We have in this legislation introduced the new idea of a communication work rather than a book, an article, a film, or whatever the earlier legislation may have covered.
I remember when the House considered the major amendment to the Copyright Act in 1994 and 1995 up to the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which set up the World Trade Organization. We spent endless hours debating terms like “mixed media works”, and if we could have all of those hours back, I think many of us would be very grateful. We now realise that we cannot guess how technology will change in the future, or, indeed, how people will use technology in the future. To the greatest extent we can, we are trying to streamline and
teflon-coat this legislation so that no matter what the nature of the content or the process is, the copyright protection will override that.
I thank Dr Richard Worth for his examination of the area of technological protection measures, as I do the Hon Mark Burton, whose contribution was very useful. I make the point that there are already technical protection measures on things like commercial CDs and to a large extent the market has seen that off. People did not buy the CDs that had anti-copy protection, partly because many people found it very difficult to play them in mobile reproduction—I am trying not to use particular names—in things like
iPods and MP3s and sometimes in people’s cars. Those CDs would not play; they would skip. People would go back to the retailer and complain that the CDs did not work. I think that has seen off the attempt to put anti-copying technological protection measures on commercial CDs of music. But that does not mean that people will not go on trying to adapt, evolve, and invent new ones.
One of the points that the Commerce Committee considered around the whole area of technological protection measures was access—and Dr Richard Worth’s comments are pertinent in this area, where he was saying that we were perhaps not exactly following what other countries were doing. Well, part of the reason is that we think there is an important issue that copyright protection, overall, which in New Zealand covers from the death of the author plus 50 years—in Australia it is from the death of the author plus
70 years—be made infinite by the use of a technological protection measure. We are very concerned that access can be given in a reasonable way. We do not want to have technological processes that mean New Zealanders in the future may not be able to access things that are important to them. We have the exceptions that include areas of research, and the open-source community makes it very clear that its concern is the ability to get into the back-end—particularly of software—so that they can see how it is done but also so that they can make better protections against viruses, worms, and other attacks on our systems or our information.
There is a need for research and a need for protection of devices and systems, but there is also the exception provided where there is good reason. For example, there was an issue that was brought to me by a teacher of the blind who works through the Royal New Zealand Foundation of the Blind. Her point was that every other child in New Zealand was able to get the last Harry Potter book at 1 minute past 11 on, I think, 26 July last year but if one happened to be blind, one had to wait for some months for either a Braille copy, or an audio or video copy. The teacher and the children involved were perfectly prepared to pay for a copy as everybody else did when buying a copy of that very popular book. In New Zealand we have access to a substantial range of works for people who are sight-impaired, and, of course, with the older generation living longer, we have more and more older New Zealanders who never learnt Braille but who are becoming sight-impaired. It is really important, particularly for things like newspapers, magazines, and that sort of work, as well as published books, that we have the widest access. I look forward to the day when we will have an international agreement where people with sight disabilities can access that. But in the meantime I think it is perfectly reasonable that, having made an attempt to acquire a copy of a textbook, another book, a magazine, or a newspaper, people wanting to access it in a digital form that can be used by people with disabilities can do so.
We have been consulting very broadly with the Royal New Zealand Foundation of the Blind to look at all of those issues, and I want to pay a particular compliment to Mary
Schnackenberg who is policy and research person at the foundation. She has been urging us on in this and the ministry is now taking a very proactive approach at international level, particularly the World Intellectual Property Organization. For example, at a recently held Standing Committee session of that organisation we made an intervention to support future work and further work on the issue of importing accessible copies from other countries. I would urge anyone who is talking with representatives of other countries to urge this work on. I think it is of huge benefit to New Zealanders with sight disabilities and also more broadly. In the meantime, the ability to legally circumvent technological protection measures may be necessary for people to get access to a digital copy, so that that can then be translated into Braille or other forms available for them.
I thank members for this. I think this debate has been very useful. The issues that Chris Finlayson raised that he was concerned about are being discussed by the officials and we will get a reply before this part finishes. Thank you.
MARTIN GALLAGHER (Labour—Hamilton West)
: I realise that the evening is moving on, but I want to briefly compliment the Minister Judith Tizard on a very good and appropriate contribution. I pick up the point Dr Coleman made about the notion of Internet television, which presumably comes via an Internet service provider. I note that Supplementary Order Paper 193 “clarifies that an Internet service provider who knows or has reason to believe that material posted on the ISP’s website infringes copyright is liable if the ISP does not delete or prevent access to the material as soon as possible after becoming aware of it. A factor in determining whether an Internet service provider
knows or has reason to believe that material infringes copyright is whether the Internet service provider has received an infringement notice …”, etc., etc.
Obviously, what speakers have alluded to, and I certainly do, is that any legislation will try to accurately forecast the current situation and what is ahead of us. I think of the days, dare I say it, when vinyl records were replaced by CDs. We now have DVDs. I have one little complaint in terms of DVD manufacturers, and that concerns the zones they have. The other day my mother bought a DVD in good faith to send to her sister in Britain—I think it was about
Wānaka. She could not play the DVD, because it had a different zone. So we get into this whole issue. How is that different from buying a book, providing one buys a book in a bookshop in New Zealand, whereby we are paying, as part of that retail price, the price of the copyright, the intellectual property right of that book, and then we send it as a gift? In the end I guess manufacturers will determine that. Now there are “world mode” DVD players. The issue, frankly, is that we do not really have the right to go down to the market and buy a pirated DVD that has been copied in a backyard shed, then post it over and we all go home, in terms of trade and in terms of selling that intellectual property right—that creativity, if you like.
In terms of Internet television, under this Government we have seen the fantastic development of TV6 and TV7, which have been included on the FreeView platform. They are two extensions that have been rolled out that are growing public television. In addition to Television One, TV2, TV6, and TV7, if I could just talk about the Television New Zealand stable, increasingly important in terms of its product is, of course, that Internet connection, whereby one goes on to the TVNZ website. There are a lot of—what are those downloadable things—
Hon Judith Tizard:
MARTIN GALLAGHER: That is it; thank you—what a good Minister! Through a podcast we can watch a particular programme, such as
Agenda—I saw the wonderful Helen Clark on that programme the other day—or we can go on the Hillary Clinton website overseas. The issue around that is that this legislation is part of the international context of intellectual property rights in terms of international agreements to make sure that the intellectual property right of each of those broadcasts is protected.
What that means, for example, is that Television New Zealand, through, say, an Internet service provider, cannot just pirate some programme from overseas unless it has actually purchased the rights to that programme. The Internet is now another form of broadcast of Television New Zealand, to use that as an example.
I strongly commend what I think is a very good and appropriate Supplementary Order Paper, and I thank the officials most sincerely for their work. This is a constantly moving target, and we do our best at this point. It is not to say that, 2 or 3 years out, we are not going to have to revisit this bill. That is the nature of the area we are working in at the moment.
Hon JUDITH TIZARD (Associate Minister of Commerce)
: I had foreshadowed that the officials were working on a response to Christopher Finlayson’s very useful question about whether simple passwords could be considered a technological protection measure. I think that in most cases they are considered to be an access control.
The definition of a “technological protection measure” focuses on conduct that is linked to the infringement of copyright and it includes access controls that might be linked to that infringement. So the general issue is whether the intent is to infringe copyright. Of course, in some cases, the theft of a password is that, but there is also the issue that most of us have passwords that are so blindingly obvious, they do not provide a particularly high level of security. I know that the information technology services at
Parliament recently required people in the Parliamentary Service and Ministerial Services to have much more complex passwords. I have to say that with my
BlackBerry it takes me longer to get the jolly thing open than it does to read the message, quite often.
The whole issue around technological protection measures and whether access control is a technological protection measure is clarified by Supplementary Order Paper 193, which states that technological protection measures will not be protected if they control only non-infringing activities through an application of an access control. I hope that reassures Chris Finlayson. I acknowledge the issue he raises, which occurred to him only this evening, as he received the Supplementary Order Paper only this morning. I assure the Committee that I was urging the earliest preparation of that Supplementary Order Paper so that it could be given proper consideration.
We are also in the process of developing another copyright bill, which will be particularly focused on the commissioning rule. In that bill we will have the opportunity to address some of these issues, if there is a problem. I thank the honourable member for raising that issue. I hope that he is reassured, because I am.
- The question was put that the amendments set out on Supplementary Order Paper 154 in the name of Gordon Copeland to Part 2 be agreed to.
- Amendments not agreed to.
- The question was put that the amendments set out on Supplementary Order Paper 193 in the name of the Hon Judith Tizard to Part 2 be agreed to.
- Part 2 as amended agreed to.
Clauses 1, 2, and 2A
CHRISTOPHER FINLAYSON (National)
: I can be relatively brief on these clauses. This is very important legislation, and I think that Mr Gallagher is right when he says it will become more important in the years to come. The first copyright Act, as I said, was that of the Statute of Anne in 1712, and of course the last substantive amendment to New Zealand law was the 1994 legislation, which basically followed, insofar as copyright was concerned, the 1988 Act from the United Kingdom. But there is the very real question, when we come to have a good look at the legislation, as to whether the United Kingdom model should continue to be the model we adopt, particularly given the fact that so much of the copyright law of that country now includes material that has come from the European Union, or whether we should look further afield to United States models, the Singaporean model, or the Australian model. Those are very important questions.
As I said, copyright law was initially designed to protect literary works, but now we have to deal with the Internet age—the digital age, Internet applications, and so on. So copyright law is very important legislation. It is legislation that I think needs to be systematically and comprehensively reviewed on a regular basis. I know we cannot do that for every piece of legislation, because otherwise a tight and tough legislative timetable would become even worse than it is now. But it was with that in mind that the subcommittee that dealt with the Evidence Bill in 2006 urged the Government to incorporate the provision that is now in section 202 of the Evidence Act 2006, which provides for a mandatory periodic review of the operation of the Act, I think every 5 years. That is a very good way of looking at some legislation. The legislation we are dealing with here is too important to allow it to go off the boil, because then one is required, by way of amendment, to insert into a bill concepts that may sometimes be
completely different from those already in the legislation, and the process of amendment can undermine the structure of the legislation.
So I am heartened that the Minister has said—and indeed the report of the Commerce Committee on the bill states—that the Ministry of Economic Development will be reviewing this legislation in 5 years’ time to ensure that copyright law is keeping pace with technological advances. Of course, the Minister has foreshadowed another copyright amendment bill in the next period to deal with the commissioning rule. I imagine it will also deal with issues related to artists’ royalties, and so on.
We have come a long way, even in 20 years. I can recall that the first copyright case I did was in the late 1980s. It was based on the 1962 Act. It was an interesting case, all about whether a fellow called Hughie Green had the copyright in the format of a talent quest programme called
Opportunity Knocks. When the Privy Council biffed out his appeal, I recall that the
Daily Mail, I think it was, said “Opportunity flops—or flip-flops”. The reality of the matter is that the 1962 Act was designed for a set of events or a set of issues that we really are a world away from.
Hon Mark Burton: Didn’t Hughie Green’s programme actually start in the 1960s?
CHRISTOPHER FINLAYSON: I think that it did; indeed, it did. The issue was whether Television New Zealand had breached copyright by taking the format of the programme. There would be an introduction, like “Mark Burton, opportunity knocks”, and then there would be an interesting thing called the clapometer, and so on. It was all very interesting, but it is a million miles away from the copyright issues we are dealing with today.
However, I tell the Committee that Mr Green did say to me that format protection would be a huge issue. He said that we should look 20 years hence, when most of what was on television would in some way be a format programme, and I think he was quite right about that. I know attempts have been made in the United Kingdom to deal with the issue of format protection.
There we have it. Copyright is a hugely important issue, and it is one that is too important for it to become the subject of party politics. Certainly, notwithstanding the fact that we received the Minister’s Supplementary Order Paper fairly late in the day, we have tried to engage in the debate in a sensible and principled way, because this issue is too important to engage in party politics on. If members of the commercial community had concerns as a result of the hearings in the Commerce Committee, then they needed to be dealt with, and that is why the Minister’s Supplementary Order Paper has been taken on board by the Opposition. Thank you.
MARTIN GALLAGHER (Labour—Hamilton West)
: I will take just a brief call to say for the benefit of the people who are listening to and viewing this debate tonight that I did love the previous speaker’s reference to 1712. Wow, there we go. I am sure that in 2012 it will be roughly time for a further review—300 years; there we go. I am someone who struggles sometimes with the different technologies. I remember the tape recorder we had even before the cassette—the reel tape recorder—and now the Minister tells me about
iPods. It is a bit sad perhaps that I should have to ask our Minister in the chair, the Hon Judith Tizard, about these things. But again this legislation is about a very interesting issue. It concerns our young people and the transmission of music, and whether we have the appropriate protection for what we would call the corner record store—the DVD store, the retailer—and the producers. We have to find out how to work through some of those vexed issues, given that to be able to copy is quite easy.
In summary, I would say that this legislation really stresses the fact that intellectual property plays a major role in moving towards a knowledge-based economy. Supporting research and development is critical in achieving an economic transformation, and I do
not think that we should underestimate the critical importance of this bill. Personally I want to thank very much the individual members, from all parties, of the Commerce Committee for the tireless work they have done over many, many hours in order to help the rest of us to get our heads around what is, frankly, a very important issue. It is an important issue for this Parliament, but it is certainly also important for our nation and our economy. Thank you.
Hon JUDITH TIZARD (Associate Minister of Commerce)
: I assure Christopher Finlayson that this process is about ongoing review. It is not necessarily the case that any particular part of the Act will be left for 5 years. There are issues around the Rugby World Cup in 2011 and around protecting the right of the organisers of that merchandise. There are a whole lot of other issues.
I compliment the copyright industry generally. It is now actively working to police what it does to protect and assert its rights and it has employed excellent people like Tony Eaton to assist in that. We are getting very good feedback. I would actually say that the consultation is almost continuous now. I know that the Copyright Council met today. We will get feedback, and there will be more legislation. There is no question of that, because as long as human beings are innovative they will find ways around any law protecting anything like copyright material.
I thank members of the Committee for their enthusiasm on this issue and assure them that there will be more of it.
- Clause 1 agreed to.
- The question was put that the amendment set out on Supplementary Order Paper 193 in the name of the Hon Judith Tizard to clause 2 be agreed to.
- Clause 2 as amended agreed to.
- Bill to be reported with amendment presently.
- The Chairperson reported the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill with amendment, and that the Committee divided it into two bills; the Securities (Local Authority Exemption) Amendment Bill without amendment; and the Copyright (New Technologies) Amendment Bill with amendment.