Hansard and Journals
Copyright (New Technologies) Amendment Bill — Third Reading
Copyright (New Technologies) Amendment Bill
- Debate resumed from 3 April.
Pita Paraone: You were making a good speech.
DAIL JONES: Thank you very much. This is a fresh day, and people who are extremely interested in this legislation would, I think, like to know just a little bit more about it. Of course, this debate is the third reading debate. It is the bill’s final reading, and after the vote today the legislation can be passed into law after the appropriate signatures by the appropriate people.
The bill amends the Copyright Act 1994 to address the emergence of technologies such as the Internet. It seeks to maintain the existing balance between the interests of the owners and those of the users of copyrighted works. It also seeks to create a more technology-neutral framework for the Copyright Act. Those of us who are up to date with technological matters, such as using iPods and copying things on to discs—the latter I get my son to do for me because I have not quite grasped how to do it yet, although the iPod side of things is very enjoyable—will be very interested in this bill, as it brings issues like that right up to date.
If people steal something, if they re-record music without being given the right to do so by the owner, or without being given any other rights, what they are actually doing is depriving artists of the income they deserve for having created the item in the first place. Stealing of copyright is theft, and something should be done to make sure that such people are caught. Of course, a law and order party like New Zealand First wants to make sure that workers are rewarded for what they do and that those people who want to steal the work of the workers are penalised.
The bill takes into account international developments in copyright law, and it incorporates many aspects of the two treaties negotiated by the members of the World Intellectual Property Organization, or WIPO—which is something very dangerous in the copyright area; the last thing people want to do is to wipe what they have just put on an iPod or whatever! Those treaties are the World Intellectual Property Organization Copyright Treaty, and the World Intellectual Property Organization Performances and Phonograms Treaty.
This bill has been fully considered by the Commerce Committee, and we have also had a good discussion of it at the Committee stage. The bill covers a number of areas of interest for people in the educational field relating to copying for educational purposes, storing for educational purposes, copying by librarians and archivists for replacement, and conditions for libraries and archives that are making and supplying digital copies. The bill covers issues such as the observing, studying, or testing of computer programs. It also looks at communication works, and various issues under that heading, such as format shifting for personal use, time shifting, free public playing or showing of a communication work that is simultaneous with reception, and reception and retransmission of broadcast in cable programme service.
The bill has looked at Internet service provider obligations, and generally, I believe, it has done its best to bring issues up to date as much as they can be at the present time. One could say that more could be done immediately, but, as always, at least something has been done, and in fact it is quite a substantial something that is contained in this legislation, which New Zealand First supports. We will be voting in favour of the bill when the appropriate time arrives.
CHRISTOPHER FINLAYSON (National) : The Copyright (New Technologies) Amendment Bill amends the Copyright Act 1994 to address the emergence of technologies such as the Internet. During the Committee stage I dealt at length with particular matters in both Parts 1 and 2, and I do not intend to repeat those comments here.
This bill is a major piece of legislation because it deals with, among other things, technological protection measures and Internet service provider liability. Those are very important issues, and I regret to say that I think this bill is very much a patch-up job and very much what I would call third-rate law reform. It is clear that the Copyright Act is overdue for comprehensive reform. If we look at the structure of this legislation, we see that a huge number of sections in the 1994 Act are amended. In my opinion, to introduce legislation that is episodic and, as I said, a patch-up job is simply not the way to serve the commercial and creative communities. I cannot understand why the Government did not take the opportunity to undertake comprehensive reform of the Copyright Act. As I said during the Committee stage, the Act is well overdue for comprehensive reform. It was last carefully reviewed in 1993 and 1994, and since that time there have been huge changes in technology. If any legislation justifies comprehensive reform, it is this one.
The National Party will support the third reading, not because it considers the bill to be particularly sparkling legislation but because it is in the interests of the commercial and creative communities that some of these changes be introduced at the first available opportunity. Had National been in a position to do so, it would, however, have undertaken comprehensive reform, because many issues have been missed in the course of this particular law reform exercise. Why is it that this Government is so lacking in vision and energy that it cannot initiate a comprehensive review of what I consider to be one of the most important statutes on the statute book? This Government is so lacking in ideas and intelligence that it does not even know what questions to ask, let alone the answers, and it is well known that one always judges a person by the questions he or she asks.
We have been told that there will be yet more reform. Further changes to the Act will be introduced some time this year, and legislation will be referred to a select committee, where, presumably, it will languish for months. Yet another patch-up job will be done on the Copyright Act.
The particular thing that I objected to in the whole shabby law reform exercise that constituted the Copyright (New Technologies) Amendment Bill was the way the Opposition was treated over eleventh hour Supplementary Order Papers. I made it quite clear at an early stage, when there appeared to be some very real concerns in the commercial community about some of the changes recommended by the select committee, that I would do anything I could to assist, because I regarded this bill as non - party political but none the less very important law reform. It was extremely important that all parties worked together sensibly in order to ensure that there was good law reform for the sake of the commercial and the creative communities. However, I received copies of the Supplementary Order Papers very late in the piece—indeed, on the day we were debating the bill in the Committee stage—and I think that that is discourteous to members of Parliament.
Above all—putting aside discourtesy—it is counter-productive for Opposition members to receive Supplementary Order Papers so late in the piece. If we are to do a good job with this sort of legislation, which, as I say, is non - party political but none the less very important, it behoves the Government to put aside the election-year sniping and election-year positioning, and get Supplementary Order Papers to members of Parliament so that they can have a good look at them and make sensible contributions in the Committee stage. Maybe I am old-fashioned and irrelevant, but I for one believe that debates in this place matter, and that we should approach our task as legislators with some degree of zeal and intelligence. How one can do that simply escapes me when one gets Supplementary Order Papers at the eleventh hour rammed down one’s throat and one has no real opportunity to study them and give them the careful attention that is required. So there we have it.
The National Party will support the passage of this legislation, but we are not happy with it. We think it is poor legislation. We think the process has been very poorly executed, and, as usual, we think that we have been treated with the customary discourtesy that we have come to expect from this Government.
The ASSISTANT SPEAKER (Hon Marian Hobbs): Before I call the next speaker, I just wonder whether I could clarify something with the member. I have the official names listed down here, and I hate to call people by the wrong name. The names have you listed, sir, as Chris Finlayson. Do you wish to be known as Christopher Finlayson?
CHRISTOPHER FINLAYSON (National) : I made it very clear when I came in here that out of respect to the House, not out of respect to me, I thought that I should be called by my full name. I do not see that that should be a matter of joking or smarminess in any way at all.
The ASSISTANT SPEAKER (Hon Marian Hobbs): No, this is not a matter of joking. It is just that I have the formal list down here, and I want to make sure that I have yours recorded correctly. Thank you.
Hon PAUL SWAIN (Labour—Rimutaka) : I agree with the member Christopher Finlayson that the Copyright (New Technologies) Amendment Bill is complex and in need of good, positive law reform. However, I cannot agree with him on the issue to do with the timing of Supplementary Order Papers. The problem with comments like that is that most members when they are in Opposition have a very, very short memory of what happens, and they have very long memories when they are in Government, and vice versa. In fact, I remember many, many occasions in the 1990s, when in Opposition, that Supplementary Order Papers appeared on the Table just as the debate started. I think there have been occasions when Supplementary Order Papers have not actually been available when second readings have begun, and sometimes even just before the Committee stage.
Of course, it is always the right of a Government to introduce a Supplementary Order Paper at any stage of the process. In an ideal world it is always good to have sufficient time for members to be able to look into the matters in the Supplementary Order Paper. I think I would probably go along and accept what the member was saying if he was willing to make a solemn pledge to this House that if National ever got back into Government—hopefully not in my lifetime—he would never ever introduce a Supplementary Order Paper without giving sufficient notice to Parliament.
Shane Ardern: We’ll probably appoint you to something. Don’t worry about it.
Hon PAUL SWAIN: Well, I am very obliged to the member for that comment, but that was not the purpose of this speech, even though he might think it is. What I will say is that the member did make a big issue of it, and I think it is fair to say that he would not be able to make a personal pledge to this House that under no circumstances would he introduce a Supplementary Order Paper, if he was ever a Minister, without giving sufficient notice to the Opposition. It would never happen, and even if he did try to do that I am sure he would be advised and cautioned by members of his own team, because we know that sometimes these things do happen.
To put all that aside, I think one of the things the member was alluding to was the complexity of this issue, and I agree with him on that. The reality is, of course, that technology is changing very quickly and very swiftly, and our copyright legislation is built on issues that are really to do with last century. Now that we are moving into the digital era, with the availability of much copyright information on the Internet, how are Governments supposed to be able to control and protect the copyright of the creator?
This is one of the things we debated around the issue of parallel importing, and in particular parallel importing of films. The argument, as I recall from when I was the Minister of Commerce, went something along the lines that if the big production companies are going to put lots of money into investing in, for example, big blockbuster films, and if the DVD is able to be imported into the country virtually at the same time as the film appears in the theatres, or if it is able to be downloaded from the Internet for nothing, then how will the production company be able to get its money back and cover the cost of the significant investment it has made in that particular piece of entertainment? Of course, the same applies for rock bands, for orchestras, and for any group that comes together to try to put forward its own copyright in order to try to make money out of its own talent and ability, particularly in writing, then is not able to get a return on it. This is a very, very difficult issue.
What we did in the parallel importing area, as far as films were concerned, was to say that in the case of a major film, it was not able to be released in a video shop for 9 months. That proposal was supported by the theatres, particularly by regional theatres and some of the new independent theatres that were being established. They said they felt that people in New Zealand wanted to go back to the theatre and that even though people had gone through, firstly, the VHS revolution, and now the DVD revolution, they wanted the opportunity to go out. The people who invest in regional theatres said that it would be almost impossible for them to get a return on their investments if people could go down to a video shop and pick up a DVD on the same day as they were showing it first time up. I note that you are nodding in agreement, Madam Assistant Speaker. I know that you had something to do with this yourself, and that we had some discussions on this issue at that time.
They are very, very complicated matters, and I think that in the end we made the right decision. Some people were not happy about it, such as DVD owners. My own DVD shop owner, who is probably watching this debate, because he watches a lot of the debates in Parliament, was particularly opposed—
Shane Ardern: I would counsel him against that.
Hon PAUL SWAIN: I have tried to counsel him against it, actually. I have told him that he needs to watch a few more of the DVDs in his shop rather than this Parliament, because it is probably better for his health. But, having said that, what it shows me—and I am digressing a little—is that since we have televised Parliament, a lot more people are taking an interest in it, and I hope it provides better incentives for members to behave in the House. I am not sure whether that is true, but certainly a lot more people are interested in watching and hearing the debates on these matters, and they are complicated matters.
This bill reinforces the parallel importing ban. It continues the ban because we were not sure how it would all pan out, and I think that is a really good thing. As I said, I know that people were upset at the time this measure came in. I think that people used to be able to go down to the DVD shop and pick up a DVD virtually straight away. As I recall, we then went through the zone 3 and zone 4 thing, whereby some DVD players would play the DVDs and some would not.
Then, of course, there is still the age-old problem of straight-out piracy, which is still a crime, whereby a movie is run in some picture theatres around the world and at the same time another copy is being made instantaneously, which is then transformed into a DVD copy, and—
Mark Blumsky: It’s $2 in Kuala Lumpur!
Hon PAUL SWAIN: Mark Blumsky is right. I have seen copies of these things, and one would hardly ever—
Mark Blumsky: Great value, but there’s a head that pops up every so often when the person in front stands up in front of the camera.
Hon PAUL SWAIN: That is the more non-traditional view. One way of copying these things is taking one’s own video camera into the picture theatre, but then when someone in front gets up to go and get some popcorn that kind of ruins it. The more modern version of this is where counterfeiters run the DVD at the same time as the film is being shown, then go out and print off that. With some of those copies one cannot tell the difference between the copy and the original.
That is one issue, but I think the issue of copying generally is very, very difficult. We have known since the time of the Napster revolution that people are downloading CDs off the Internet. We know that there is now technology whereby people can download modern movies off the Internet. We know this. The issue for the industry is how to control that. It usually tries to build some kind of mechanism in to try to stop that from happening. How does the Government try to deal with the problem of copyright for people who deserve to be paid for their talents? This is the issue. I feel strongly about this, because I think downloading is a form of theft—there is no question about that. If someone writes a good song, a good book, or a good poem, or if someone plays in an orchestra, and if that person does that for a living, he or she deserves the right to get some return on that. The Government is trying to do something about this issue in this legislation.
I think that legislation will always be a catch-up—it will probably always be second best—and that Parliament will always have difficulty trying to keep up with innovations in technology. We do know that the digital age will require more and more amendments to this type of legislation. I think that even if we had a major review—which the member was suggesting—by the time the review was over the technology would have moved on and the solutions would probably be outdated. There will have to be incremental change. On the one hand we do not want to bring in regulation that is too hefty, cannot be followed, or somehow limits and restricts the openness of the Internet, but, on the other hand, we want to try to make sure that people who have creativity are getting paid for it, and that we try to retain that principle. The bill is looking to try to balance those two things. I support the legislation, but I predict that this is not the last time we try to deal with this issue in this House.
NANDOR TANCZOS (Green) : Of course, this is not the last time we will be dealing with these matters, because the Minister Judith Tizard has announced that this Copyright (New Technologies) Amendment Bill is part of a raft of measures. I think a number of issues around copyright that are not addressed in this bill need to be picked up. We in the Green Party welcome the Minister’s announcement and think that it is an important continuing piece of work.
Let me begin by acknowledging that this bill is an attempt to address serious deficiencies in current legislation. There is no doubt that there is a real need to amend copyright legislation in order to make it compatible with digital technology and to protect genuine intellectual or creative property. I think it is fair to say there are some things in this bill that are deserving of support and that improve on the status quo. Some of those improvements are a result of amendments made both at the Commerce Committee and during the Committee of the whole House. However, the Green Party remains concerned enough about some of the provisions that we will continue to vote against this bill.
I am aware that the Minister stated during the Committee stage that some of the issues we have raised—both during the debate in this House and during private discussions with her—will be looked at by way of a review by the Ministry of Economic Development. She specifically referred to our concerns about the lack of protection for fair use in relation to copyright infringement, particularly when used for satire and the like. The Minister has indicated that her approach is likely to be one of providing specific protection for fair comment and parody, and I understand that this approach is the same as has been taken in some other jurisdictions. The Green Party welcomes that announcement. However, it is not adequate to cause us to change our position on this bill.
The gestation and passage of this bill has been lengthy, and we do not see why these issues could not have been addressed before today. In any case, we feel unable to put away our concerns on the basis of a future process with an unknown outcome. As I have said before, our concern is particularly around the Internet service provider liability provisions and the opportunity for corporate bullying that they provide. Under the bill, if an Internet service provider is informed that material it stores may breach copyright held by someone else, it is liable to a penalty if it does not, as soon as possible after becoming aware of the complaint, delete the material or prevent access to it. The triggering threshold is that the material is “likely to infringe” such copyright. As I have said previously, an Internet service provider will, in practice, interpret this very broadly. Internet service providers simply will not want to take any risks. Once notified of a potential breach of copyright, an Internet service provider will almost certainly take down the material—if they think there is even a possibility that it breaches copyright—and leave it to the courts to sort out, if, in fact, the matter ever even gets to court.
We have seen these kinds of provisions being misused in other jurisdictions. They can be used to clamp down on satirical websites and to inhibit genuine creative innovation. In fact, the world would never even have heard of breakbeat without the assertion of fair-use rights in creating new works by way of sampling, and the like. In the United States there have been massive corporate attempts to destroy musical forms based on sampling, such as hip hop.
The Greens would like to see, in opposition to the notice and take-down provisions in this bill, a notice and notice regime. As I have said, it would work like this: if someone makes a claim to an Internet service provider that some material that it hosts breaches copyright, the Internet service provider will notify the alleged infringer. In most cases the person would either admit guilt or just fail to respond, and in those cases the Internet service provider would simply remove or prevent access to that material. However, a small proportion of alleged infringers would contest the claim for genuine—if debatable—reasons, and the matter could then be adjudicated in court. We believe that this approach would provide fair protection for copyright holders while also protecting legitimate use. It would at least allow claims to be contested in an impartial forum. We believe that the current notice and take-down provisions do not provide any protection for fair use. Although the bill does provide a right to sue for unjustified proceedings, where a matter is genuinely contested that right will be of no value, because it will not be an unjustified proceeding; it will simply be a contested proceeding.
However, I thank the Minister for amending during the Committee stage provisions added by the select committee on how a copyright holder gives a notice to an Internet service provider of an alleged breach, because those requirements were unreasonably restrictive. I also welcome the amendments around the use of copyright materials by educational establishments and education resource providers that are not-for-profit organisations. These amendments make such materials available for legitimate educational purposes, and I think that those are important amendments that were much needed.
In relation to amendments made at the Committee stage, let me lastly state the Green Party’s support for the decision made by the Committee to vote against Gordon Copeland’s amendments, which would have provided satellite television providers with a right to retransmit works broadcast on a free-to-air format. That seems to us to be a simply commercial matter, and one best left to the commercial operators to sort out for themselves.
We do have issues remaining around the technological protection measures and around some other areas. I have canvassed all of those things in detail in previous stages of the debate, so I will not repeat them here. However, I would like to make one final point in this debate, which is around the Minister’s announcement that another copyright amendment bill is proposed. I understand that this bill will pick up any recommendations from the Ministry of Economic Development review that I discussed earlier in relation to fair use, particularly around the liability of Internet service providers. I guess that a specific exemption around fair use would have implications beyond just Internet service provider liability and would provide protection for a range of other fair-use activities. That would be a good thing.
The other thing that that bill is expected to pick up is work around the commissioning rule in relation to photographers, where photographers do not hold the copyright in published work by default. We understand this to be an anomaly internationally and an anomaly in relation to other forms of creative work. It is something that we believe needs to be addressed. We have discussed it with the Minister—we have had fruitful discussions—and although, clearly, that matter was not within the scope of this bill, it is something that needs to be picked up in future work. Thank you, Madam Assistant Speaker.
Dr PITA SHARPLES (Co-Leader—Māori Party) : Tēnā koe, Madam Assistant Speaker. The definition of a generation gap is when one accidentally refers to a CD as a 45, or asks whether the track is available in LP form. With this bill, I wonder whether that gap is widening even further, with the realisation that over the past 5 years CD sales have plummeted a massive 23 percent.
The way of listening to a popular track is now commonly accessed through downloading and sharing of files. The International Federation of the Phonographic Industry in fact reports that some 20 billion tracks were downloaded illegally in 2005 alone. The Recording Industry Association told the Commerce Committee that even the legitimate digital business is expanding rapidly. Music is being made available now through lawful means via licensed services such as iTunes, digiRAMA, and Amplifier, with current projections expecting that in 2 years’ time at least 25 percent of all music sales worldwide will be digital.
So we are talking about a whirlwind industry that has relegated vinyl to the back shelf in favour of the iPod classic, the touch screen iPod touch, the video-capable iPod nano, or the screenless iPod shuffle. As of September 2007 the iPod was the best-selling digital audio player in history, having sold over 110 million units worldwide. We are in the midst of a sound revolution, and it is in that context that we in the Māori Party welcomed the amendments to the Copyright Act to address new technologies such as the Internet whilst also maintaining the existing balance between the interests of owners and those of users of copyright works.
As a performer and a writer myself, my interests in copyright have been about not so much the profits or gains entrenched in a music economy but the threats posed to intellectual and cultural property ownership issues. I do not expect to see any of my pātere or pao that I have composed available as a mobile phone ringing tone—although it would be a good idea; one could wake up to “E tāmarangaake!”. But I do have ongoing concerns about the need for protection around the appropriate transmission of our cultural heritage. The digital world is one of instantaneous communication, and it is absolutely vital that the cultural knowledge that has been developed over generations is protected from exploitation in a commercial age.
The concept of Māori cultural and intellectual property rights is, of course, extremely relevant as Aotearoa awaits the Waitangi Tribunal findings on Wai 262, some 17 years after the claim was first lodged by Ngāti Kahungunu, Ngāti Kurī, Ngāti Wai, Te Rarawa, Ngāti Porou, and Ngāti Kōata. Wai 262 asserts exclusive rights to cultural knowledge and property, consistent with international discussions taking place in such fora as the World Trade Organization, the World Intellectual Property Organization, or the Convention on Biological Diversity. In essence, the concerns are to do with the commercialisation of knowledge that we may consider as taonga: ngā toi Māori, or arts; whakairo, or carving; history; oral traditions; waiata; and te reo Māori. Those treasures are increasingly being targeted in the international arena.
The protection and retention of mātauranga Māori, or traditional knowledge, is also to protect against the exploitation and misappropriation of cultural taonga. We have witnessed the most horrific abuse of our traditional artefacts, such as our moko mōkai, or preserved heads, being displayed hung on meat hooks, or the use of moko to promote a Halloween mask.
Tangata whenua have also been concerned about the failure of legislation and policies to protect existing Māori collective ownership of cultural taonga, and, in particular, the lack of equitable benefit sharing, and the lack of acknowledgment of the traditional knowledge protection mechanisms of indigenous peoples. Our cultural property has been created over generations, and exists far outside the realms of individual ownership. A particularly fascinating example of the complexity of copyright laws as related to Māori was described by Alistair Smith in a paper entitled Fishing with New Nets: Maori Internet Information Resources and Implications of the Internet for Indigenous Peoples. Smith traces an experience related to the works of the Bohemian artist Gottfried Lindauer. In 1996 Lindauer’s portraits of Māori chiefs from the last century were scanned and placed on the web by the Auckland City Art Gallery. This generated considerable outrage from descendants of the chiefs profiled in Lindauer’s portraits, who believed that the cultural property rights lay with them. Yet conventional intellectual property law applies only to Lindauer’s works, and because 50 years have passed since his death, the copyright law enables these portraits to be regarded as being in the public domain.
To assist in navigating some of these complexities, the Government has produced Te Mana Taumaru Mātauranga, which gives some valuable advice with regard to intellectual property rights, laws, and international agreements. Yet, while we all take part in the waiting game for Wai 262, both that guide and the bill before the House today are inevitably of limited value in protecting the expression of mātauranga Māori and associated cultural property. As such, we were fascinated at the choice of which issues were specified as requiring further review by the select committee in this Copyright (New Technologies) Amendment Bill. We of course took note of the authorised comment from the outstanding three-time Academy Award director, producer, and writer, Peter Jackson. His comment, which was stipulated as able to be used only for the purposes of these submissions, argued that the director should be recognised as the author of audiovisual works, urging us, and I quote: “if we, as a country, profess to honour and promote our creatives then let’s get behind it legislatively and ensure that they can get some financial benefit from the sales of the works that they create. … Our Copyright Act should reflect this, let’s make it happen by keeping up with the rest of the world.”
Accordingly, the Ministry of Economic Development advised the select committee that it would begin work on this issue in early 2008. Yet, although concerns around intellectual and cultural property rights were raised by Te Rōpū Whakahau—the professional association for Māori who work in libraries, archives, and information services—the report back on the bill is remarkably silent on this issue. Te Rōpū Whakahau concluded: “we contend that there is a need to develop a category of collective ongoing and enduring rights that will ensure that Maori retain the right to control the appropriate expression and transmission of our cultural heritage. This control is one that can’t be invested in an individual and protected by conventional intellectual property mechanisms such as copyright.”
There are interesting international precedents that could have been examined. The Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture 2002 is an intellectual property - based sui generis system that draws on copyright principles to provide protection for traditional knowledge and cultural expressions. The concept of sui generis—one of its own kind—has already been introduced in Aotearoa in the Trade Marks Act 2002. Amongst its provisions, the Commissioner of Trade Marks is able to refuse to register a trademark if it is considered offensive to Māori. This was a very welcome and innovative move. It is considered that the Waitangi Tribunal ruling on Wai 262 will also recommend the implementation of sui generis systems in order to protect Māori knowledge. Another interesting model is that provided by the Sami people of Norway, Sweden, Finland, and Russia. They have established Sámikopiija—a reproduction rights organisation that represents the interests of Sami culture. The organisation has been set up to administer collectively their rights, and to ensure that appropriate remuneration is paid to the Sami for reproduction of intellectual property.
This bill was in the ideal position to build on all of these developments, both domestically and internationally, and, just as it did with the recommendations around the directors, also to grab the opportunity to demonstrate leadership in requiring comprehensive protection of mātauranga Māori—Māori knowledge. It is a matter of great disappointment to the Māori Party that the House has not been presented with such an opportunity. It is therefore inevitable that the Māori Party will be unable to support this bill. Thank you.
Hon SHANE JONES (Minister for Building and Construction) : Kia ora nō tātou. I sat on the Commerce Committee, along with a host of our other colleagues from both sides of the House, and—as I recall it, Mr Copeland—and waded through a host of very technical submissions dealing with the Copyright (New Technologies) Amendment Bill.
I follow Dr Sharples and share, in a moment of mirth, that he provided me with a story from the time when I went to St Stephen’s School about a—I think it was a 78—record that had been made collecting the ancient songs of the Ngāti Porou tribe. If I am not mistaken it was a Mrs Dewes, the daughter of the Rev. Pineāmine Tamahōri, who had been recorded singing ancient oriori and waiata from Cape Runaway through to Gisborne. Listening to it was hardly the most interesting thing that we wanted to do. But I am reminded that this bill shows how far we have moved on from there, because when we made a 78 record go faster than it should with a 78-year-old woman singing ancient laments from Hikurangi mountain, it sounded like something quite out of this world. That did not please the Māori language teacher, who—unfortunately for my backside, because caning was still around—decided that I should suffer some punishment.
It is unfortunate that I heard Dr Sharples announce that the Māori Party will not be supporting this bill. It caused me to recollect that great story about a scratched record. We are hearing from members of that party far too often that they will not support innovation and modernisation. They are condemned to their view of both our people and the place of Māori people in New Zealand society as being frozen in time, like some static image incapable of moving forward in any dynamic current. However, that is another matter, and we will deal with that in November.
When I was on the select committee there was a great deal of angst about whether section 88 of the parent legislation should go or should remain. We took some spirited submissions from people representing the Television New Zealand board, I presume, people representing Sky, and people representing TelstraClear, which may not actually exist much longer and could be consumed by Vodafone. In the end, it seems that a compromise has been struck. There was a sense of sunk investment and that people’s existing ability to access some transmissions via the TelstraClear platform, etc., in terms of the people who had already subscribed, would disappear. But I have no doubt that a future Government will return to address that issue.
Although this bill talks about somewhat arcane things, there is a key public policy issue at stake here, and it is one that I questioned the submitters about very intensely. It is whether copyright infringement should apply to civic institutions, such as public libraries, school libraries, and tertiary libraries. I was clearly of the view, as an individual parliamentarian who was sitting on that committee, that although the providers of that information should be concerned that undue profit might be made at their expense, access to knowledge is a great contributor to building civic virtue amongst not only our educated class but civil society in general. I was very, very keen to see that prop be upheld, so that our institutions can access information and make information available to our students in the most efficient way possible, without the students or their long-suffering parents having to pay a penalty, or the teachers or lecturers being pinged for unwittingly breaking the law to do with copyright.
Although libraries are required to keep written requests and maintain a database, the fact of the matter is that provided the material is not being used for pecuniary gain, there is scope so that when material is copied digitally, it remains the lifeblood of the young people. I remember that when I was studying law and economics, we suffered pages and pages of cyclostyled or xeroxed—whatever the term was in those days—material. The fact that it can now be accessed over the computer does reflect the fact that although the information still has a critical role in evolving the sense of obligation, duty, and right that we look to university graduates to uphold in society, their entitlement is finely balanced with that of the people who put the books together, and who suffer the deprivations of having to give up rugby, drinking beer, and being with the family to write scholarly texts that unfortunately may be read only by students as studious as Shane Jones was for that brief point in his life—something that Mr Tremain and others should, no doubt, look at in an admiring sense—
Chris Tremain: Take a leaf out of that book, yes?
Hon SHANE JONES: Yes. I think it is best to describe that—[Interruption] The Kiwi Tavern, unfortunately, no longer exists. It was an institution of great repute amongst the Māori boys and girls who went to Auckland University. It is actually a marae now, I understand, I say to Dr Coleman.
Dr Jonathan Coleman: I thought it was a car-park.
Hon SHANE JONES: Is it a car-park? I can say that if it is a marae, then it was already graced with great oratory before the university complex that now occupies that space turned it into a marae. Of course, the Kiwi Tavern was known as the brother hotel to the Globe Tavern, the “big eye”. Those matters have long since passed me by; we are on to far more important matters as parliamentarians.
However, the key point remains that the key public policy issue in this bill seeks to draw the right kind of balance. In relation to format shifting, Dr Sharples talked about the need for us to use modern technology to capture the remnants of not only our Māori history but the history of pioneer New Zealand, the history of families, and the histories of communities. One thing that we should dwell on when we are talking about such dry and prolix topics as technology is that unless this technology is used by our young people so they become more familiar with and express a greater degree of owning their own history, then our own sense of where we have come from as a country is, in my view, distorted.
A lot of people ask why we Māori are so hard out on giving our genealogy, and so insistent on reciting the names of our awas, our wakas, our maungas, etc. I think that is an unfair challenge to us, because that opportunity lies with every New Zealand family. All families should teach their children that their family came on the Ladybird, or whatever boat they came on. They should teach their children to be knowledgable about their history and to value their history, and not wait until an earlier generation has all but died off, then suddenly suffer an attack of anxiety and try to put the history together. Fortunately we are still a young country, and many families are in a position to do that.
But I will say that modern technology has helped a lot of our Māori families who have gone back and are now able to copy from master databases material such as the great speeches of the 1930s and 1940s that were collected by either Sir Apirana Ngata and his ilk or by Sir Apirana Ngata’s son, a great ethnologist. Those speeches lie in a memory bank somewhere in the State broadcasting system, but from time to time they are copied. They are copied in such a way that we can be driving down an electorate road, a pathway—of course some, like my friends from the Māori Party will not be on roads; they will be up the creek—and we can put on an iPod and listen to material that was recorded 40, 50, or 60 years ago. That makes it accessible to a generation who, in my view, spend too much time on the iPod anyhow and need to spend more time kanohi ki te kanohi talking, speaking, and debating.
The material covered in this bill allows for format shifting, downloading, etc. It does not all have to be Snoop Dogg and the wretched type of music that, unfortunately, blights too many of the rooms of my house. More for me are the Doobie Brothers, Stevie Wonder, Joe Cocker, and so on. However, that list, unfortunately, is used as an example of why my kids will not travel with me in the car. But they are able to help matua Shane Jones to download material and put it on to a system that then plugs into a radio. I can then drive knowing not only that I am generating great taxpayer value in the electorate of Northland but that I am also rehearsing my childhood memories and singing, etc., which will come in handy one day in the unlikely event that the rugby team enjoys a surge this year. But we will hear more about those matters from those on the other side of the House.
I commend this bill. Although the topic is somewhat dry, its application is exciting. I am disappointed that my whanaunga from the Māori Party will not support the bill, but such is life—more on that in November. Kia tātou katoa.
Dr PITA SHARPLES (Co-Leader—Māori Party) : I raise a point of order, Madam Speaker. Due to the wide public interest in this interesting bill, I have received a phone call from a member of the public who would like to tell Mr Jones that the record in question was a long-playing 33, not a 78. So it is no wonder he got the speed wrong, and he probably deserved the caning he got.
The ASSISTANT SPEAKER (Hon Marian Hobbs): Strictly, that is a point of information and debate, not a point of order.
DAVE HEREORA (Labour) : I take this opportunity as a member of the Commerce Committee to take this call in relation to the Copyright (New Technologies) Amendment Bill. I took a couple of areas as being of particular interest in this bill, which were to do with educational establishments and library provisions, particularly in regard to ensuring that, at the very least, students had the opportunity to gain information for their learning, and that they were protected in being given that opportunity.
Currently, for educational establishments, archives, and libraries, there are a number of exceptions for copies of works, so I suppose it was necessary for the bill to clarify how these exceptions will work in a digital environment. There are some minor amendments to the educational establishment provisions that are designed to overcome practical difficulties with the provisions, such as problems identifying the author of a work, particularly in regard to courses that a work would be used for but also in regard to the requirement for libraries to look at written requests and to make and retain declarations when they are copying digital material. These requirements were removed because they would have been administratively difficult for libraries to comply with, and there is no evidence that libraries have abused or would abuse provisions to infringe that copyright.
Some of the interest and concerns from the public were around the risk that works would be copied and transmitted by or to the general public, and that an educational establishment or library could effectively substitute for the role of commercial distributors or publishers. I suppose that the committee’s consideration was that the amended clauses did not condone copying or that the transmission of digital works in these actions continued to be an infringement of copyright; rather, they provide practical mechanisms for educational establishments and libraries to copy digital material in a way that is consistent with the current exceptions in the Act, with completely complex and unnecessary compliance requirements. So I suppose our consideration was aimed to ensure, at the very least, that there was the opportunity still for libraries and those establishments to be able to provide that material when necessary.
The other area that I took interest in, and my colleague speaking previously raised the matter, was format shifting—trying to deal with the fact, for example, of someone using an MP3 player whether in public or at home, and clarifying with that the existing position under the law: how an owner can contract out of a format shifting provision, and the requirement for a person to obtain the original sound recording in their possession if the format had shifted. So there was a real need for the deletion of a clause in the provision that would have meant it expired after 2 years. This was to avoid uncertainty about whether people who purchased older sound recordings would be able to continue to format shift in the future.
A further area was that of Internet service provider liability, where the provision that the limit of the Internet service provider liability for copyright infringement had to be applied in specific circumstances. Some amendments were made to these provisions as a result of our consideration of the bill, largely on the recommendation of specialist advisers—and I have to say that their advice was very handy in giving us some tuition and direction. The requirement in the bill was that an Internet service provider would have a limitation on liability only if they had adopted a policy around termination of accounts or repeat infringers. Some people were really concerned that this was unnecessary, as the standard of Internet service provider terms and conditions generally already allow for this, and that its scope and application were unclear.
In relation to changes to the notice and take-down procedure in the bill, the provision had specified that an Internet service provider is not infringing unless it knows or has reason to believe that the material is infringing, and also that it does not delete or prevent access to the material as soon as possible so they can become aware of it. As a result of that concern—that is, that it did not provide sufficient certainty for Internet service providers about when they would be required to take material down, and that it did not diverge from tests in other jurisdictions—the following change, we thought, was necessary. That was that a test was altered to clarify that the Internet service provider must either know, or have received a notice, that the material was infringing, and that there is a new requirement that notices must be properly completed, signed, and written in the prescribed form. There is a new offence for knowing or recklessly providing a notice that is materially false or misleading, and the requirement for an Internet service provider policy for termination of accounts of repeat infringers was removed because it was unclear in its scope and application and Internet service providers already generally have terms and conditions that cover that. There was a particular concern from Internet service providers that it would be difficult to determine whether they complied with the provision, which could leave them exposed to that liability. Of course, the new provision relating to this obligation is to remove material that provides that Internet service providers will not be shielded from liability if they have knowledge of infringing material. Therefore, notice would be required in this situation. We also looked at posing that the drafting of this provision could be clarified through a Supplementary Order Paper later.
The new offences apply only where a person knowingly or recklessly provides a false or misleading notice, and where those notices are false or misleading in a material way. An inadvertent or minor error in a notice would not give rise to that liability. So the provisions relating to the preservation of the injunctive relief in the bill were amended as a result of recommendations from the specialist advisers to the select committee. These amendments were to give effect to that clear policy and intent, which was to preserve the ability for rights holders to seek injunctive relief.
The last area I want to make note of is that of protection measures, and in the second reading debate quite a lot of speakers from the Commerce Committee raised this issue. It was in relation to extending the current technical protection measure provisions so that the technical protection measures, which protect all exclusive rights under copyright, were protected, to ensure that there was some form of penalty in relation to an offence for commercial dealing in technical protection measure circumvention devices, means, and information, and also to contain provisions to enable users to seek assistance from such trusted institutions as libraries and educational establishments to break technical protection measures to exercise permitted acts under Part 3 of the Copyright Act. I suppose key changes that we determined were the clarification of the technical protection measures to be designed for purposes other than the protection of copyright, and also the enabling of users to seek assistance from trusted institutions; it was 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, as the amendments were made on the recommendation of those advisers who, as I said earlier, were really good in giving advice to the committee.
Those were the four areas that I thought were of particular interest, and I reiterate that although we are dealing with new technology everyday, I support this bill and recommend it to the House.
|Ayes 111||New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 2; ACT New Zealand 2; Progressive 1; Independents: Copeland, Field.|
|Noes 10||Green Party 6; Māori Party 4.|
|Bill read a third time.|