Johnston Lawrence

Dragging copyright law into the digital era: Copyright ownership vs public’s right to access

2 November 2008. by NZ Law Releases , tagged with Business Law | NZ LAW Releases

The Copyright (New Technologies) Amendment Act 2008 came into force in New Zealand on 12 April 2008. It clarifies the Copyright Act 1994’s digital technology provisions by providing a technology neutral framework in an attempt to balance the competing interests of copyright owners with the public’s access rights to copyright works.

Significantly, the amendment creates a new, technology-neutral category of ‘communication works’ which extends the protection previously afforded only to signals that carried programme content in broadcasts and cable programs. There are also new exceptions for the format-shifting of sound recordings and timeshifting for private and domestic use. The owner of a legitimately acquired sound recording can now copy the recording to another device/s owned by that person for personal or household use.

However, the amendment fails to give similar rights to those who, for example, copy from a purchased DVD to their video iPod. There appears to be little justification for failing to grant a similar exception in respect of the format shifting of these and other forms of media that have now become commonplace, and which are saved to an increasingly wide range of devices. Furthermore, the copyright owner retains the ability to limit or exclude format shifting through contract on the basis that they have paid a fair price levied for that right.

For ISPs

As the amendment limits the circumstances in which Internet Service Providers (ISPs) might face liability for copyright infringement, ISPs can now take advantage of a limited exception to infringement under the amendment where the ISP is merely providing the physical facilities to allow a communication to take place, such as by providing storage and caching, as opposed to actually knowing (or ought to have known) or authorising any infringement. However, ISPs are required to delete or prevent access to material when they are made aware, through a proscribed form of notice, that
the material is likely to infringe copyright (also known as the ‘notice and take down’ obligation). The limitations under the amendment will not prevent copyright owners from seeking injunctive relief against ISPs.

Attempting to stem copyright piracy

The amendment’s toughening up of the provisions designed to prevent the circumvention of technological protection measures (TPMs) is part of a deliberate reaction to the increased impact of copyright piracy in New Zealand. The amendment has expanded the Act’s prohibition against the making, importing, hiring and selling of devices, services or information designed to circumvent ‘copy protection’ to include devices, services or information that circumvent all economic rights provided to copyright holders. At the same time the extension of the prohibition on the parallel importation of films within nine months from their international release date (that expired on 31 October 2008) for a further five years seeks to encourage investment in New Zealand’s rapidly growing film production, distribution and exhibition industries as well as protecting cinema ticket sales.
The rapid advancement of new technologies has demanded that copyright law respond accordingly. The new amendment is New Zealand’s first step in rising to this challenge.

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