Hon JUDITH TIZARD (Associate Minister of Commerce)
: I move,
That the Copyright (New Technologies) Amendment Bill be now read a third time. It is with enormous pleasure that I move this, as this bill has taken some time to get through the House’s processes. Indeed, it took some time to get through the consultation process with copyright industries that we chose to go through.
This bill is important legislation, which, as part of the Government’s programme, will update New Zealand’s copyright laws to try to ensure that we keep up to speed with recent advances in digital technology. The bill forms part of the Government’s wide-ranging reform of intellectual property law in general, and the programme of reform has included, and will include, reviews of the Patents Act 1953, the Trade Marks Act 1953, the Plant Variety Rights Act 1987, the Geographical Indications Act 1994, New Zealand’s accession to several key international trademark treaties, the enforcement of criminal offence provisions for counterfeiting registered trademarks and piracy of copyright-protected works, and the Government’s decisions on parallel importing, and the effects of those decisions on creative industries.
We hope that the programme of reform will ensure that New Zealand’s intellectual property law helps to support the Government’s goals of promoting innovation, creativity, and economic growth, and will meet the needs of businesses whilst also promoting efficiency and minimising compliance costs to New Zealanders who are using this material. It will provide greater clarity and certainty over the scope and enforcement of intellectual property rights, for the benefit of creators and innovators, as well as users of intellectual property and investors in the development of intellectual property. The reform also takes account of international practice, and complies with New Zealand’s international obligations.
We require a robust, up-to-date intellectual property rights regime, and that is essential as part of an innovative, growing economy. We have talked much in this House about New Zealand being a knowledge society and a knowledge economy; this legislation is at the heart of that. We need well-defined, enforceable intellectual property rights that provide incentives for creativity by ensuring that creators can derive a financial return for their creative efforts, but that creativity also needs to be made accessible in an affordable way to users and people who will go on innovating that work.
The intellectual property rights system needs to be current and contemporary—a system that promotes development of the economy and New Zealand’s identity by encouraging investment in creativity and innovation, but one that also recognises that New Zealand has a unique take on many aspects of this. Copyright is absolutely an integral part of the system that protects our creative industries and our information and communication technologies, by prohibiting unauthorised reproduction, and by making sure that the work of creators is acknowledged and paid for.
Digital technology presents significant opportunities to open new markets for New Zealanders—creators, owners, and users of intellectual property and copyright material—as well as presenting many risks, because digital technology enables high-quality copies of original material to be very easily made, very easily communicated, and very easily distributed. The ease with which digital material can be copied and communicated increases the risk that unauthorised copies will be made and communicated as well as authorised ones.
The objectives of this bill are to update and clarify how copyright applies to new technology, particularly in today’s—and the future’s—digital environment. It needs to
promote a modern legal framework that guides the protection and use of copyright material, and it also ensures the effective operation of the Act in the face of emerging technologies.
We need to ensure that the Copyright Act remains fair, effective, and well understood in the face of the emerging needs of a dynamic and technology-supporting economy and all of the people who use it. The bill maintains the balance between protection, access, and use already established under the Act, and it takes that through into the digital world. The bill creates a flexible framework for technology to operate under, by redefining certain terms contained in the Act to try to make them more technology neutral. I remember that when we reviewed and updated the law in 1994 we spent a great deal of time debating what to call technological works, and we came up with the idea of “multimedia work”. Well, of course, that has been superseded, and I hope that this bill is less prescriptive and more inclusive of whatever change that happens.
The key provisions of this bill are around technology-neutral definitions, and it also tries to create a technology-neutral framework that will go on being useful. It creates a technology-neutral right of communication to the public, and, in a digital world of almost instantaneous communication, the ability to control communication of copyright material is as significant as the ability to control copying. Control over communication is necessary to encourage investment in, and the provision of, the effective online distribution methods that are now demanded by providers and customers. Technology-specific terms such as “broadcasting” and “cable programme service” are replaced with terms such as “communicate” and “communication work”.
The bill clarifies the liability of Internet service providers—ISPs—when it comes to copyright infringement. It introduces a limited exception from copyright infringement where the Internet service provider merely provides the physical facilities to enable a communication to take place. Transient or incidental copies that are made by a computer or a communications process as part of the integral and necessary processes by which, for example, users browse websites on the Internet is not infringing copyright. The bill also provides that there is no liability for the Internet service provider when storing and caching infringing copyright material where the Internet service provider deletes or prevents access to infringing copyright material as soon as possible after it becomes aware that the material is likely to infringe copyright. To facilitate Internet service providers becoming aware of infringing material, the bill provides for a template notice to be used by copyright owners to inform Internet service providers about any infringing material that they may be storing or hosting. This regime is called a “notice and takedown” regime, and is a common feature in many copyright regimes internationally.
Some changes to the Internet service provider liability system were made following the bill’s report back from the Commerce Committee. A requirement for an Internet service provider to have a policy for terminating the accounts of repeat infringers has been reinstated, and the offence of providing misleading notices to Internet service providers has been removed.
The bill updates the permitted acts for fair dealing for educational establishments, libraries, and archives, and it clarifies how these permitted acts should apply to the digital environment. Educational establishments, libraries, and archives can create and store digital copies of works on the Internet or other electronic retrieval systems, provided certain conditions are met. The bill provides a new limited exception for copyright infringement for “educational resource suppliers”—a new term that is about organisations whose principal function is the copying and supplying of communication works to educational establishments for those purposes. This provision will help schools
to make greater use of audiovisual copyright material without infringing copyright. It also provides new opportunities, very like those provided by libraries now, for electronic copies to be made.
The bill provides a format-shifting exception for copying sound recordings for personal use, or the personal use of a person’s household. This exemption for format shifting of music aligns the law with the public’s need. The fact is that legally viable technology and legally obtained music have not, by our law, been able to be used together until now. However, the key condition of the format-shifting exception is that the original purchaser must retain both the original version of the sound recording purchased and the copy made. This provision does not legitimise the copying of CDs for friends or online file-sharing. Both of these actions remain an infringement of copyright.
The bill also provides new limited exceptions for decompilation or adaptation of computer programs, in certain circumstances. These conditions include that the decompilation is necessary to obtain information necessary for creating an independent program that can operate with the program decompiled, or the adaptation is necessary to ensure lawful use of a program, such as correcting an error in the program to ensure the proper functioning of the program, when a properly functioning and error-free copy of the program is not made available within a reasonable time at an ordinary commercial price.
The bill provides that a lawful user of a computer program does not infringe copyright by observing, studying, or testing the functions of that program. We also make provisions around the area of technical protection measures, which will be discussed by other speakers. We also introduced a Supplementary Order Paper that extended the 9-month parallel importing ban on films. This ban was due to expire on 31 October 2008, and it now goes out until 31 October 2013.
I thank the Commerce Committee and the submitters on this bill. I particularly thank the copyright industry: Ant Healey from the Australasian Performing Rights Association, and his predecessor Mike Chunn, Tony Eaton from the New Zealand Federation Against Copyright Theft, and Campbell Smith from the Recording Industry Association of New Zealand who did an enormous amount of work to make this bill workable. I thank the officials—Bronwyn Turley and her team—and Lia Haar, Anishka Jelicich, and Erica Gregory in my office, who have done an enormous amount of work on this bill to make it a good bill.
I commend this bill to the House and thank the House for the time it has spent making it a better piece of legislation.
Dr RICHARD WORTH (National)
: I would like to find it in my generous nature to say something charitable about the process that the Copyright (New Technologies) Amendment Bill has followed through the House, but I find it difficult to do so because the bill has had a very long legislative history. The bill was introduced on 4 December 2006, then went to the Commerce Committee on 12 December 2006. As a result of substantial issues that emerged in that process, it has languished there.
Hon Judith Tizard: A good thing. It’s a much better bill.
Dr RICHARD WORTH: If I could make a charitable comment I would say, against the background of intervention from the Minister, that one of the good things that happened was that the select committee decided to take specialist advice from outside the ministry. So a foil was presented to the views of the senior staff from the ministry, by two independent experts. Those independent experts were Earl Gray and Geoff McLay.
It is also right to say that if we look through the legislation, we will see that a large number of changes have been made. Nevertheless, as I said the other night, this
legislation, at the moment of its enactment, is assuredly somewhat inappropriate. It is somewhat outdated. I expressed the hope on Tuesday night, and I do so again, that it might be possible to include in this type of legislation a review provision similar to what occurred within the Evidence Act—that there would be a review and that the legislation would be brought up to date.
I would like to say something in a general way about copyright. Copyright is a property right that exists in original works. The changes made by the Copyright (New Technologies) Amendment Bill are changes to substantive legislation—the Copyright Act 1994. I am reminded of the seminal work that was done in identifying particular parts of the legislation that were worthy of change. I express a degree of sadness that not all his views were taken up to deal with some of the lacunae that have been identified. The Copyright Act 1994 gives copyright owners exclusive rights that allow them to control certain aspects of a work’s exploitation, while at the same time providing limited exceptions to these rights for users of copyright material. It is in this way that the principal Act—the Copyright Act—seeks to provide incentives to ensure the creation, production, and distribution of new creative works in a manner that meets society’s needs.
This bill amends the Copyright Act 1994 to take into account the impacts of new technology. In my view, it does so imperfectly, but that is what it seeks to do in those areas of digital music and film. It tries to seek a balance between what are often seen as the competing interests of creators, owners, and users of copyright work. It is part of a wider process of reform that was developed to ensure New Zealand’s intellectual property legislation is up to date and takes account of international developments in copyright. It incorporates many aspects of the two treaties—I understand that a member from New Zealand First is going to speak about them in just a few moments—negotiated by members of the World Intellectual Property Organization, or WIPO, as it is called. The organisation’s Copyright Treaty and its Performances and Phonograms Treaty seek to update international copyright standards to take account of developments in digital technologies. In looking at some of the aspects—and I am not going to deal with the detail of this; I can scarcely do so in the time available—we see there are issues around reproduction; communication; Internet service liability; technological protection measures; permitted acts, including format shifting; performers’ rights; and a very subtle issue that is not picked up well, which is the impact of the American Digital Millennium Copyright Act.
I close by making a final comment. I have been starkly critical of the Associate Minister of Commerce in connection with the process of this legislation. On Tuesday, 1 April, in the Committee stage of this bill, we saw Supplementary Order Paper 193. That Government amendment document made major, substantive changes. It is not appropriate, and it will never be appropriate, to propose major law changes on the very day that the Committee looks at legislation on a clause by clause basis.
National supports this bill, but it does so with significant reservation. I express the hope that the Government that will come into office no later than 15 November this year will make an immediate start on producing legislation of which all members of this House can be justly proud.
