New Zealand digital copyright law
p2pnet news view | Politics:- New Zealand passed its digital copyright law this week, drawing the ire of the technology community and the blogosphere.
While the bill isn’t great, many of the provisions are far better than what Industry Minister Jim Prentice may have in mind for Canada including format and time shifting provisions as well as anti-circumvention provisions that are more flexible than those found in the DMCA.
In fact, the anti-circumvention provisions are arguably the best of any country, since they are compliant with WIPO, limited in scope, and seek to preserve fair dealing rights.
On the anti-circumvention front, there are several things to note:
- the technological protection measures (TPMs) expressly exclude access controls such as region coding. In other words, the anti-circumvention provisions do not apply to devices that “only controls access to a work for non-infringing purposes.”
- the legislation targets anti-circumvention devices, but excludes those devices that have something more than “limited commercially significant applications” other than circumventing a TPM.
- the law prohibits making, selling, distributing, advertising, or offering a circumvention device if the person “knows or has reason to believe that it will, or is likely to, be used to infringe copyright.” The inclusion of a knowledge requirement creates an additional safeguard against overbroad application of the provision.
- most importantly, the law clearly permits circumvention for “permitted acts”, which effectively preserves fair dealing rights (the statute also specifies the right to circumvent for encryption research). More impressive, the law includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves. In such cases, the law allows a “qualified person”, which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user (the user can also ask the copyright owner to unlock the work for them).
In addition to the anti-circumvention provisions, the law includes a (fairly restrictive) format shifting provision that permits copying sound recordings without compensation onto other devices (one per device, must be your own music, must retain ownership of the source copy). It also includes a time shifting provision that expressly permits television program recordings, though the recordings may only be retained for a limited period of time.
It also contains a mixed bag for Internet service providers.
While ISPs are required to establish a policy for terminating “repeat infringers”, the law appears to contain a fair amount of flexibility in how such a policy should be implemented. Moreover, ISPs are statutorily protected against liability for the infringing activities of their users.
The law includes possible liability for storing infringing content once the ISP knows or has reason to believe that the content is infringing and it fails to take it down. The statute also clarifies that caching content is permitted. Overall, the ISP provisions are flawed, but not a total disaster.
While this bill is far from perfect, it is light years ahead of what Canadians were likely to get last December. Moreover, the combination of the recent Israel law (fair use) and the New Zealand law (flexible anti-circumvention), re-affirms that there is considerable copyright reform flexibility and that major countries around the world are taking advantage of that flexibility notwithstanding U.S. pressure.
If those countries can do it, why can’t Canada?
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
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April 10th, 2008 at 11:06 am
I’m not sure I understand the first point. Are they saying that region codes aren’t included in the list of TPMs that people are allowed to circumvent for otherwise legal uses? Or does it mean that the law doesn’t even apply to region codes, since they’re not really an anti-piracy measure?
April 10th, 2008 at 6:39 pm
^^ I think (and hope) the latter.
April 10th, 2008 at 7:16 pm
If I remember correctly, New Zealand has kept a stand that region encoding is illegal, and that region free DVD player are sold there.
My Kiwi friend said that this was because they were none too happy to find that their video viewing was limited, only because they lived in New Zealand.
Just my two cents
April 11th, 2008 at 4:23 am
In other words, the anti-circumvention provisions do not apply to devices that “only controls access to a work for non-infringing purposes.”
No anti-circumvention for non-infringing (region free) dvd players.
April 11th, 2008 at 3:50 pm
Is New Zealand’s anti-circumvention law good? Not really.
More to the point, it highlights how unnecessary anti-circumvention really is. If New Zealand’s “anti-circumvention law done right” has fair uses staying fair, and infringing uses staying infringing, what’s the point of anti-circumvention in the first place?
Here’s the point: relaxing the burden of proof for the deep-pocketed serial copyright infringement plaintiffs. They lobby the globe every year to buy lucrative special interest laws just like this, knowing they’ll recoup their investment by suing every competing copying, recording, or distribution technology on the planet. That’s really all there is to it.
That’s why New Zealand’s anti-circumvention law, while better than the United States’ DMCA, is still not “anti-circumvention law done right.” That would be no anti-circumvention law at all.
April 12th, 2008 at 12:01 pm
“That’s why New Zealand’s anti-circumvention law, while better than the United States’ DMCA, is still not “anti-circumvention law done right.” That would be no anti-circumvention law at all.”
The way it used to be before copyright enforcement was deemed to be the most important issue in the world.