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Copyright (New Technologies and Performers' Rights) Amendment Bill — First Reading

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Copyright (New Technologies and Performers' Rights) Amendment Bill

First Reading

  • Debate resumed from 7 December.

Hon JUDITH TIZARD (Associate Minister of Commerce) : I will take up where I left off last Thursday on this bill that amends the Copyright Act 1994. I was coming to the matter of technological protection measures that offer a means to combat the ease of unauthorised reproduction and distribution of digital technology. There are, however, concerns about digital lock-up. Copyright owners may use technical locks, not only to stop their copyright material from being copied, but also to stop it from being accessed, and can therefore potentially prevent copyright users from making legitimate uses of the material, for example under the fair dealing provisions of the Act. Currently, the Act allows copyright owners to take action against people who supply or manufacture devices, means, or information specifically designed to circumvent measures that prevent copyright material from being copied and are intended to be used to make infringing copies. The bill extends this right by allowing copyright owners to take action where circumvention could enable infringement of all exclusive rights, not just copying. For example, the copyright owner will be able to take action in regard to devices where circumvention would enable infringement of his or her communication right. The act of circumventing the technological protection measure is not in itself prohibited.

The offence provision introduced in the bill for the commercial dealing in circumvention devices, means, and information is intended as an additional deterrent to such activity. New provisions are also introduced to enable the actual exercise of permitted acts where technological protection measures have been applied.

The bill introduces protections for copyright management information that identify content protected by copyright in the terms and conditions of use. Criminal penalties are also introduced for large-scale dealing in copyright material where the dealer knows that electronic rights management information has been removed or altered. The permitted acts or exceptions to the exclusive rights of copyright owners contained in the Act provide an important balance between protection of copyright, and access for users. The bill clarifies and amends the exceptions to copyright owners’ exclusive rights, particularly in relation to fair dealing, library archival and educational use, and time shifting. It also introduces new exceptions for format shifting of sound recordings for private and domestic use, and for decompilation and error correction of software.

Format shifting is a term used to describe the practice of copying the sound recording from one format to another, for example from a CD to a portable MP3 player. Today the popularity of MP3 players, iPods, and other portable digital music players means that people want to transfer music, which they have legitimately bought, on to these devices to take advantage of the new technology or to enjoy music in different places. Yet, despite the fact that this activity is common practice, it is an infringement under the Copyright Act—a fact that most music lovers do not know. This makes otherwise law-abiding New Zealanders into unintentional lawbreakers. The bill amends this situation to reflect both fairness and reality. The exception does not legitimise clearly damaging behaviour like copying CDs for friends or selling them, or authorising online file sharing of music.

The Copyright Act also provides a range of rights to performers, enabling them to exercise control over the recording of their performances and the distribution of those recordings. This practice of making illegal copies, known as bootlegging, can have a major impact on the ability of performers to obtain a fair return for their efforts. In keeping with the changes to the main copyright provisions in the Act, the bill will update the technology-specific language currently used and will introduce a communication right for performers.

Copyright legislation is a key aspect of New Zealand’s intellectual property rights framework. Copyright continues to be relevant in the digital age, and is an important tool for digital content delivery and use, commercially and non-commercially. This bill promotes a modern legal framework that guides the protection and use of copyright materials. The bill will provide more clarity and transparency for how the Copyright Act applies in the digital environment. In particular it will enhance the certainty about how exceptions in the Act apply to digital works and will allow users of copyright material, for example libraries and educational institutions, to make use of digital technology with confidence.

The bill will increase incentives for investment in creative industries, information and communication technology development, and new business models for the delivery of copyright works. Increased certainty will further be created by New Zealand’s law being more in line with that of our major trading partners. Increased certainty is also encouraging the continued supply of copyright works and means of distribution, such as by Internet service providers, within New Zealand and from overseas, setting the conditions to encourage continued access to information and the innovations necessary for cumulative innovation.

I have indicated that at the appropriate time I will move that this bill be referred to the Commerce Committee for consideration, and I thank all of the officials who have been involved in the detailed negotiations that have resulted in this legislation.

CHRISTOPHER FINLAYSON (National) : National will support the first reading of the Copyright (New Technologies and Performers’ Rights) Amendment Bill so that it can be considered carefully by the Commerce Committee. The first copyright Act was the Statute of Anne passed in 1709. It was enacted to protect authors who found that printers and booksellers were printing, reprinting, and publishing their books without their consent. Since that statute the Westminster Parliament has adapted the copyright system to cope with the technological advances of each age, and New Zealand’s copyright law has always been closely linked to the UK legislation.

In the 20th century this Parliament has made a number of changes to copyright legislation in order to provide protection for radio broadcasts, films, and television broadcasts. About 20 years ago the law of copyright in England was reviewed. The 1709 legislation was described as a modest Queen Anne house, to which there have since been added Georgian, Victorian, Edwardian, and finally Elizabethan editions, each adding embellishments in the style of the times. This bill, which seeks to amend the Copyright Act 1994, could be said to be a late Elizabethan embellishment.

One feature of this bill is that, on occasion, the equivalent English provisions are departed from in favour of provisions from Australian or United States copyright legislation. I think the select committee will need to examine those clauses whereby there is a departure from the English provisions to make sure that they are appropriate and that the legislation remains intellectually coherent.

The Copyright Act 1994 requires a comprehensive review; we only have to look at the huge issues facing the law of copyright. For example, will protection and encryption technologies beat the hackers and the copiers? Will copyright enforceability weaken over the next few years? Effective copyright enforcement depends on a delicate balance of technologies, as protection abilities must outpace copying abilities. This balance is unlikely to continue during periods of rapid technological change such as we are now experiencing, notwithstanding the provisions of this bill. Indeed, there are some who believe that the enforcement balance is turning against copyright. These questions show why a comprehensive review is required and why there needs to be a fresh discussion about the appropriate balance between the interests of creators and the public. I am disappointed that the Minister has failed to institute a comprehensive review of our copyright law.

There is another reason why this kind of law reform is required. Amendments of this kind—piecemeal amendment—can damage the fabric of legislation. Rather than tinkering with legislation, on occasion it is preferable to have a comprehensive review, to go back to first principles, and to make changes in a principled manner.

Before making some comments on the detail of the bill, I will make a general comment about what I consider to be the key issue not addressed by this legislation: consideration of the other side of the copyright equation, namely, dealing with use that does not infringe the owners’ legitimate rights. For example, there seems to have been no consideration of the recent proposals made by the US Library of Congress in relation to orphaned works. Various reports of the ministry have rejected a wider, fair-use protection, and that has left New Zealand copyright legislation with a mishmash of specific exceptions.

I first address key terms in copyright, which are a very important issue in this bill. Many of the basic concepts in the Copyright Act 1994 remain relevant. However, two terms are changed by this bill. References to broadcasts and cable programmes are to be deleted and replaced by a new concept entitled “communication work”. The new term is defined by an amendment to section 2 of the Copyright Act, inserted by clause 3(2), and it “… includes a broadcast or cable programme”. So the bill strips the Act of all references to broadcast and cable programmes and instead substitutes the term “communication work”. I hope the Commerce Committee analyses that definition carefully to ensure that it adequately covers all new forms of technology. I agree that the current definition of cable programme is inadequate, but it may be wise for the select committee to consider retaining some notion of broadcasting.

Clause 44, which inserts section 81A, is a very important clause and needs some work, in my view. The first issue is whether what is proposed is the right policy response to the issue of making music available for portable devices. It could be argued that the market can provide the answer. What is proposed will permit home recording for private and domestic use, but the select committee may want to give some further thought to this issue. In addition, the section inserted by clause 44 has a sunset provision and will expire 2 years after the date on which it comes into force unless renewed by the Governor-General by Order in Council. The select committee may wish to consider whether that sunset provision is necessary or desirable. I have my doubts. It does not make sense that my right to download music to my iPod should automatically lapse. How will it be enforced? I think this provision needs a great deal of work done on it, and I understand that, as currently drafted, it satisfies neither side of the debate.

I also have some concerns about clause 49, which repeals section 88 of the Copyright Act. The select committee will also need to take a good look at this clause. There is an argument that section 88 could be extended to permit satellite retransmission of free-to-air broadcasts and not just cable retransmissions. Enabling simulcast of free-to-air channels by digital satellite broadcasters will enable consumers in some parts of New Zealand to receive a much higher quality picture and, in some cases, channels that they are currently not able to receive. My understanding is that the equivalent provision in Australia has been extended to include satellite retransmissions. The explanatory note states that section 88 is “… no longer suitable to achieve the original policy objectives of encouraging competition and improving quality of television reception.”, but no reasons are given. Why is New Zealand adopting a different approach? What does the change in policy mean for those parts of New Zealand where there is no established cable network? I hope the select committee will look at those issues.

Clause 53 introduces a number of sections that address the issue of the liability of Internet service providers for the infringement of copyright. Three circumstances are specified, and I will not address them now, but I know that the select committee will want to look carefully at those provisions.

For the purposes of this speech I do not have any substantive comments to make on those clauses that amend Part 4, “Moral Rights”, of the Copyright Act. The amending clauses delete references to broadcasts or cable programmes and substitute the term “communication works”. For the purposes of this first reading speech I do not have anything much to say about Parts 6 and 9, which likewise ratify the terminology changes I have referred to earlier.

The final clause I will refer to is clause 89, which introduces sections after section 225 of the Act. A subpart entitled “Technological protection measures” is introduced. In simple terms, one can explain all this by saying that there have been some major technological changes since 1994 and that these have given rise to new forms of digital communications and ways of protecting this new technology. These measures receive protection under the bill—for example, it becomes a criminal offence to provide or manufacture goods or services that act as a technology protection measure spoiler. It also becomes a criminal offence to alter or destroy any copyright management information attached to copyright material and to sell any material that has its copyright management information destroyed. I understand that these provisions are modelled on the American Digital Millennium Copyright Act.

The Commerce Committee will want to consider the appropriateness of applying criminal penalties to actions that have not been considered to be the true business of the Copyright Act. The provisions expand the scope of copyright law and may not, in fact, be in the public interest. A better approach may be to allow bodies to grant exceptions that are justified in the public interest. I refer to the Library of Congress in the United States, which can issue regulations permitting certain breaches. I understand that the library has recently allowed an education exception to allow the encryption mechanism to be broken on DVDs so that professors can show a particular scene from a film, for example, to their students for educational purposes.

In conclusion, therefore, National supports the first reading. There are a number of important issues that the select committee will need to consider. As I have said, I think this type of law reform, in such an important area, is second rate. If the Government thinks that intellectual property laws are so important, it should institute regular and comprehensive reviews. This bill does not deal with many other major contemporary issues in the law of copyright, and it should. With those comments, I look forward to being part of the Commerce Committee, which will debate such issues as do appear in the bill.

Hon BRIAN DONNELLY (NZ First) : I first became aware of some of the difficulties created by the new technologies with regard to copyright rules during hearings by the Education and Science Committee way back in 2002 into the National Library legislation. The representatives of news agencies expressed concerns about the required legal deposit of all published material with the National Library. The problem arose from the reality that many news agencies contracted with international news agencies such as Reuters. This created the conundrum that if there was a legal requirement for such material to be deposited, rivals could piggyback off the agency that made the initial deposit. Moreover, the material was being updated on a regular basis. At that time, I can well remember, it was pointed out that policy work was already under way on copyright legislation to accommodate the new technology. So the Copyright (New Technologies and Performers’ Rights) Amendment Bill here today has had a long genesis.

Computers were supposed to make our lives easier. Yeah, right! But they are a reality, and that reality demands some additions to existing copyright rules. For a knowledge economy to flourish, there must be robust protections for intellectual property and for other people’s creations. As pointed out in the opening anecdote, new technologies have created new challenges in establishing legal protections.

The approach that has been taken in this bill is to reflect the basic principles of hard copy copyright—in other words, existing copyright rules and principles—and to apply those principles to the issues facing the new technologies. In other words, the bill has tried to apply practical, pragmatic, common-sense solutions to the challenges.

Under the present law it is almost certainly illegal to copy music on to an iPod or an MP3 player, yet hundreds of thousands of New Zealand citizens do it, completely unaware that they are probably breaking the law. This new legislation will allow someone who has legally purchased a CD to transfer that music to an iPod or an MP3 player for personal use. For example, the car that I normally drive has a CD player. But I also own a little Toyota Town Ace, which is like a motorised trailer. I use it to go into town to get supplies of builders’ mix, metal, and things like that. The Town Ace has only tape facilities. Under the present law, I cannot tape a CD and play the tape in my Town Ace; this new bill would allow me to do that. What I will not be able to do is to make a copy of the CD and give it away to somebody else. Certainly, the bill confirms the illegality of the sale of such copies.

There is some resistance from the music industry to this format shifting, because it encourages copying. However, if my Town Ace had a CD player, I could play the CD on it. I have purchased the CD legally, and therefore it seems sensible that I should be able to put it into a different format for my own personal use.

Hon Rick Barker: Change your car!

Hon BRIAN DONNELLY: I say to Mr Barker that I cannot afford to change my car; I am not on a Minister’s salary. To us in New Zealand First this legislation seems to be a very common-sense, practical resolution of the issue.

The bill changes the definition of “copying” in the Act, to accommodate the nature of digital works. It also provides an exception to the reproduction right, for transient copying through automatic processes of communication networks. When we think about it, the absence of such a provision could potentially bring Internet networks to a halt. The bill specifically prohibits the manufacture or supply of devices that could be used to breach this copyright—namely, devices designed to circumvent technological protection measures.

I am pleased that the bill lays out what is acceptable for libraries and education institutions. Development of photocopiers in the 1970s and 1980s led to widespread breaches of copyright. In fact, schools were not even aware that they were in breach of copyright on many occasions. Admittedly, in the 1990s that situation was tightened up, but the new technologies, as I said, have created new challenges for schools. The anecdote from Chris Finlayson, about the Library of Congress allowing certain sections of CDs or DVDs to be used for educational purposes, shows the way forward.

I well remember Mark Peck saying with regard to the GE moratorium legislation: “The commercial sector isn’t very happy, and the Greens aren’t very happy, so we’ve probably got it just about right.” With this legislation, neither the creators of the materials—musicians, etc.—nor consumers will be entirely happy, which means it is probably just about right. New Zealand First will be supporting this bill, as it seems to be a common-sense response to the special challenges that the new technologies bring with them.

Dr PITA SHARPLES (Co-Leader—Māori Party) : The people of Te Āti Haunui-a-Pāpārangi were left with the words of their tupuna Tinirau: “Toi te kupu, toi te mana, toi te whenua”. The proverb stresses that these three taonga—language, prestige, and land—are the main means of preserving Māoritanga. Without the Māori language, without prestige or mana, and without land, Māori culture would be a thing of the past. In much the same way, the comprehensive protection of mātauranga Māori—Māori knowledge—is intimately linked to the notion of copyright.

We, the Māori Party, welcome the opportunity for copyright reform to ensure that the critical issues associated with Māori traditional knowledge and intellectual property rights are debated. Thirteen years ago Mātaatua iwi and the National Māori Congress organised an international hui from which emerged the Mātaatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples. The resultant declaration was tabled at the 1993 session of the United Nations Working Group on Indigenous Populations, and has since been acknowledged in a key number of international documents produced by Unesco, the Convention on Biological Diversity, and the World Intellectual Property Organization.

There are three key ideas included in the Mātaatua declaration. Firstly, indigenous cultural heritage is site and community specific. Secondly, the first and primary beneficiaries of indigenous cultural heritage are the direct descendants of that heritage. Thirdly, indigenous peoples are willing to share with humanity their traditional knowledge, provided ethical processes such as free and prior informed consent are protected, alongside their fundamental rights to define and control this knowledge.

The Mātaatua declaration also calls on States to develop, in full cooperation with the indigenous peoples, a sui generis system to protect cultural and intellectual property. The concept of sui generis systems is a key principle for which we will be looking keenly to expert advisers—the people in the know—to bring their learning to bear at the select committee. The concept of sui generis is to describe new ways of doing things. Aotearoa has already introduced a sui generis measure in its Trade Marks Act 2002. In addition to the standard components of trademark law, there is a provision that enables the Commissioner of Trade Marks to refuse to register a trademark if it is considered to be offensive to Māori. This is considered to be a sui generis measure, a new and unique addition to the existing framework. So it can be done. Would it not be a great thing if, during the process of this bill, we were able to follow this lead and ensure that a new way of doing something could be followed up?

This bill amends the Copyright Act 1994 to account for the opportunities and risks that digital technology presents for creators, owners, and users of copyright materials. These new techniques can be both a blessing and a burden. The burden, of course, accompanies the risks associated with commercial dealing of material that acts against owners’ rights. At its very essence, copyright is about creators being recognised for their efforts.

I come to this bill from a basis of over 30 years in composing and orchestrating choreography for Te Roopu Manutaki Māori culture group. My passionate belief has always been that I want to share our works of art to ensure that our taonga tuku iho continue to thrive and revitalise our culture. But I am constantly reminded, particularly in the context of Te Matatini, our national Māori kapahaka competitions, of the significance of providing for intellectual and cultural property rights to ensure that the long-term development of Māori performance arts is protected. So I think about the world of kapahaka—festivals, events, exhibitions, wānanga, workshops, master classes, Māori performance arts in schools, the Pacific Arts Festival, and international festivals and events—and about how indigenous knowledge is protected across all those arenas. There is an ongoing debate about who owns the copyrights in all those areas. Is it Te Matatini or is it the artist? I know myself that it has sometimes taken all of our efforts to get our compositions out of the archives. After all, who are we? Only the authors.

That brings me to another point, which I hope will be taken up at the select committee. We seriously need to know the views of those at the coalface—or, more appropriately, at the easel or the floorboards—about the context of copyright in relation to new technologies and performers’ rights. The issue of performers’ rights gives us every reason to urge that tangata whenua be specifically invited to make their presence felt in this new legislation. Some in this House will recall that in 2003 Toi Māori Aotearoa, at an annual hui for Māori performers, raised issues about the performers’ rights review before Cabinet. Māori performers described their concerns about collective ownership of performances, and protection for the underlying cultural heritage that provides source material for a variety of performances. This is particularly so in relation to respecting the cultural integrity of works once they enter the public domain. So we can do no better than turn to Māori performers to assist the Parliament in clarifying the application of existing rights and exceptions for tangata whenua in the digital environment.

Finally, I recall the kōrero that came out of the National Digital Forum of November 2004 at Te Papa Tongarewa. Dr Paul Reynolds raised the concept of a creative commons: a communal creative webspace in which the protection of intellectual property maintains the copyright holder’s ability to grant certain rights to the public while reserving others. I quite like this idea, and I would be interested in seeing how it applied to our digital future.

There was also specific reference to the exhibition Ka Moe Ka Puta, which showcased Ngāti Kahungunu photographic archives. Unlike the temporary inhabitation of a physical space, an online exhibition has the advantage of creating an archive for the future. But there are also problems associated with this type of exhibition being made available online that relate to intellectual property protections, in particular. Suggestions were made that a type of subscription or password entry, perhaps by whakapapa, could be included.

Other issues raised included the probability of precluding human interpretation in the decontextualised atmosphere. In effect, what that means is that it prevents my kuia and kaumātua from walking alongside of me, describing the wealth of whakapapa connections that link to an image. These are all issues that we hope might be brought to the table when the bill comes to the select committee.

The Māori Party will support this bill, and we look forward to a fertile discussion in which we are all better informed about the means of protecting and preserving the mana and integrity of our language, our words, our world.

I finish with a final inspiration from the oriori of Tūteremoana, which reminds us of the importance of protecting Māori knowledge: kotahi tonu te hiringa i kake ai a Tāne ki Tikitikiorangi. Ko te hiringa i te mahara. There was but one great power that enabled Tāne to reach Tikitiki o Rangi. It was the power of the mind. Thank you, Madam Assistant Speaker.

GORDON COPELAND (United Future) : I rise on behalf of United Future to speak on the first reading of the Copyright (New Technologies and Performers’ Rights) Bill. When Chris Finlayson spoke recently of the Statute of Anne of 1709—I assume, by the way, that that is Queen Anne of the chocolates fame, because I know my wife Anne was not around in 1709, and, I doubt very much whether Madam Assistant Speaker was around in 1709, either—I was reminded recently that this bill was introduced to the House by the Hon Judith Tizard, and that she was also involved with the Charities Bill a couple of years ago, which was a continuation of the Statute of Elizabeth of 1601. So, for whatever reason, it seems that the Minister Judith Tizard seems to pick up on Acts that were started by English female monarchs. Perhaps, in due season, this bill will be known as the Copyright (New Technologies and Performers’ Rights) Act of Judith 2006, and historians will puzzle over why it had its first reading on 12 December when, in fact, the calendar shows that it is 13 December outside this Chamber. Anyway, I am sure those historians will be able to explain that little mystery to future generations.

This bill essentially updates New Zealand copyright law. Indeed, as Chris Finlayson has pointed out, there is a long tradition of law concerning copyright; it goes way, way back in time. This is necessary because we are now in the electronic and digital age. I could not help but think, when I was listening to Dr Pita Sharples’ speech, which referred to Tāne and other such things, that probably no one anticipated in those times that we would have an electronic and a digital age, and that the indigenous people of New Zealand, the tangata whenua, would be there alongside people from other parts of the world to put in place legislation to take us forward into that digital age.

I am a member of the Commerce Committee, and I note that the bill will be referred to that committee, so I look forward to getting down to the nitty-gritty of the bill in the select committee. At this stage I simply signal that United Future will support the bill, which I think is both timely and necessary.

NANDOR TANCZOS (Green) : The Copyright (New Technologies and Performers’ Rights) Amendment Bill has been so long in the drafting that some of the more telling criticisms of it can be found in the ministry’s own early documents. The ministry’s 2002 position paper, for example, states it is the ministry’s view that it is not the role of the Act to protect access-control technology, which is used in some cases to price discriminate and control the geographical distribution of works, to the detriment of users. I absolutely agree with that. Our copyright law should not be used to help firms to price discriminate and to control where and how works that have been legally purchased can be used. That would be to the general detriment of users, and it would stifle innovation and research. Yet that is precisely what the current bill would do. It would turn this Parliament into a tool of corporate control, by mimicking some of the least desirable features of prior American legislation on this topic.

To be fair, there are some good points. The bill tries to distinguish between the personal use and commercial use of digital material, but with mixed results. It protects Internet service providers from being in breach of the Copyright Act as they conduct transient copying during the process of delivering web material, and it has also tried to come up with a workable notion of “fair dealing” in copyright material. It tries to exempt sound recordings that have been ripped to an iPod or for playing in the family car. It also seeks to create another exemption intended to legalise the use of multi-zone DVD players. Those are welcome advances—or they would be, if they were unambiguous. I acknowledge the comments of Chris Finlayson in his call for a comprehensive approach to the whole issue of what constitutes “fair use”.

If we take the issue of format shifting as an example, currently under the Copyright Act it is illegal to rip a CD that one has legally purchased on to one’s iPod, or to make a copy to play in the car. Under this bill it would be legal to take a CD that one has bought and make one copy for each of the replay devices that one owns. Yet, incredibly, that provision has been given a sunset clause. The exemption that allows a person to format-shift the sound recordings that he or she has bought will expire 2 years after the legislation has been passed, unless it is explicitly renewed by Order in Council.

It seems to me to be a basic principle that once we have bought a CD, we should be allowed to decide how we use it in our own homes. How will this exemption work at all if a record company attaches non-copying technology to its CDs? Under this bill it would appear to be illegal to try to circumvent that technology and to try to enforce one’s legal rights in New Zealand. One of the concerns raised by the Privacy Commissioner around this very point was that such proposals may force New Zealanders to accept intrusions on their rights that may not be consistent with New Zealand law but that it would be illegal to circumvent.

In addition, why has the exception for copying purchased sound recordings for personal use not been extended to audiovisual works, as well—that is to say, to DVDs as well as CDs? People do format-shift both CDs and DVDs, and they will increasingly do so—it is just a simple fact of the world we live in.

The line between personal use and commercial use also gets very blurry, very quickly. If personal use can be argued to have commercial implications—if one merely communicates information about the structure of encryption codes to others, who then use that for commercial or criminal purposes—the chain of liability seems very unclear. Presumably, one cannot be held criminally liable for the end uses of digital information by others.

It is also unclear to me how, under this bill as it is drafted, one could carry out open-source research, which can be said to be for personal use but can have commercial applications too. The entire open-source movement, whose overwhelming strength and contribution to the entire evolution of the World Wide Web and the Internet has been based on its readiness to share how codes and formats work, could all be torpedoed by this legislation. We would be legislating against the new breed of web innovators. Where, for instance, will interoperable competitive products fall on the spectrum, as the bill attempts to strike a balance between copyright and personal use? In one sense it is clearly of personal advantage to be able to develop one’s own product, but will that not entail cracking and disseminating the codes and formats of the units one wishes to interoperate with?

But, as I have previously indicated, my most fundamental problem is with regard to the degree of protection that the bill offers to technical protection mechanisms. Those anti-circumvention measures primarily put Parliament into the service of corporate profit-making. They give no discernible defences at all, that I can see, against malware or encrypted surveillance measures that corporates may well incorporate into digital works that they distribute. Collectively, these measures will—and currently already do—work to stifle innovation and research.

Let me be clear at this point that the bill, despite its name, is not actually about protecting the copyright of artists. Their right to a decent income from what they have created is not the driving motive of this bill. Nor will this bill stop piracy or counterfeiting. The US legislation that the bill mirrors has been invoked not against pirates but against consumers, scientists, and legitimate competitors. This bill seeks to enshrine the rights of corporations over cultural and scientific property. Artists, with very few exceptions, will continue to receive a pittance for the fruits of their labours. After all, the bill is about the right of corporations to exploit consumers at every point in the delivery of digital material, and it seeks to make a criminal out of every citizen who tries to resist those corporations’ power to do so. For example, corporations in the United States have already sued nearly 2,000 individuals who have engaged in the file sharing of music.

Just today we have been debating legislation to end Telecom New Zealand’s monopoly of access to the local loop. Why on earth would we want to create a new realm of legislation that enshrines monopoly access in the digital domain?

The international verdict on this legislation is already in. Cory Doctorow of Boing Boing, the world’s most widely read blog, has this to say: “New Zealand MP Judith Tizard has sponsored an amendment to New Zealand’s Copyright Act. The new copyright proposal mirrors the USDMCA … . This has been an unmitigated disaster in the US: not only has it totally failed to keep copyrighted works from being copied without permission … [but] it has also created an anticompetitive marketplace where companies can sue their competitors for making compatible products.”—for making compatible products! Cory Doctorow goes on to state: “Not to mention the devastating effects on user rights, and the chilling effect on legitimate security research. The US had an excuse:”, Doctorow concludes, “when it passed the DMCA in 1998: nobody had tried this and seen how bad it was … . But here we are, 8 years into the DCMA trainwreck—what possible excuse can New Zealand have for adopting this failed US policy initiative? Why would you want to import another country’s disaster?”

This Parliament has to ask itself that question. In fact, as someone has already said about this bill, people can poison a river and get a slap on the wrist—or maybe get a consent, as happened in Pareora just today, I think—but if they try to tamper with a multinational’s international property rights, then the book really gets thrown at them, to the tune of fines of up to $150,000 or 3 years in jail in the case of this legislation. Why on earth do we want to introduce that kind of legislation here?

I will make one final comment around the exemptions for educational purposes. The point was made, in an email that came to me only today from Steven Marshall, that the Copyright Licensing Ltd v University of Auckland decision has made it abundantly clear that exceptions in relation to educational purposes must be interpreted as narrowly as possible. In practical terms it is very hard to stay within the limitations of the Act. New Zealand institutions have discovered that to their cost. In effect, every institution must use licences in order to manage the risk. The bill’s regulatory impact statement acknowledges that obliquely, by saying that maybe some libraries and educational establishments will be prevented from making particular use of copyright material without a licence from the copyright owner, but that it is OK because it may already be copied under their licensing agreements. This rosy view of the world of licensing ignores the experience of Australia, which is often an accurate predictor of what will occur in New Zealand in this area. We have to remember that licensing for the digital provision of materials is substantially more expensive than for paper-based materials—up to 10 times the fees for the same content if it is in a digital format. Institutions are having to invest heavily in onerous tracking and notice provisions.

A party vote was called for on the question, That the Copyright (New Technologies and Performers’ Rights) Amendment Bill be now read a first time.

Ayes 113 New Zealand Labour 50; New Zealand National 48; New Zealand First 7; Māori Party 4; United Future 3; Progressive 1.
Noes 6 Green Party 6.
Bill read a first time.
  • Bill referred to the Commerce Committee.