Microsoft, music industry sound off on copyright

More submissions on proposed changes to the country's copyright law have been made public, with Microsoft and the recording industry coming out strongly on the side of copyright holders.

The Copyright Act 1994 is being reviewed in light of technological changes occurring over the past decade.

Microsoft's submission, out of the company's regional corporate offices, asks for criminal liability for deliberate infringement and appropriate civil damages (including statutory damages) for those who engage in unauthorised commercial exploitation of others’ intellectual property. It also wants protection against the unauthorised tampering with copyright protection technologies and copyright management tools.

Microsoft wants any exception for reverse engineering -- suggested in the Ministry of Economic Development's position paper -- to have sufficient safeguards "against bad faith or unfair use of the exception by competitors and be consistent with overseas provisions".

Microsoft thinks New Zealand should aim for copyright laws which are compatible with those of its trading partners (such as the US and Australia) "for the benefit of developing export industries". Australia is proposing changes to its copyright law in line with that of the US, including that country's much-debated DMCA law, which Microsoft considers a good model.

"Microsoft considers that the DMCA regime for the [ISP] notification and removal of, or blocking of access to, infringing material provides: (a) balance between the interests of copyright users and copyright owners; and (b) certainty for ISPs." Microsoft is likewise keen on the DMCA's ability to crack down on the use of copyright circumvention devices.

As for allowing transient copying, the ministry suggesting "that temporary storage in RAM for the purpose of executing a computer program or game does not constitute infringement”, Microsoft is wary.

"Microsoft is concerned that any exception for transient copying would undermine the commercial basis of software licensing and would directly contradict the principle of commercial equality for copyright works in the digital environment. It is important to bear in mind that software can be simultaneously accessed and used by multiple users from a single hard disk copy." It notes server-based computing and ASP-hosted offerings.

The submission makes no mention of fair dealing provisions, such as allowing some copying -- and the necessary access -- for research, teaching or criticism purposes.

The recording industry body, RIANZ, suggests that right holders themselves "are best positioned to find the most appropriate ways of accommodating exemptions and it should be in the right owner’s area of responsibility to facilitate the exercise of the permitted act". This approach is unlikely to be favoured by sceptical fair dealing advocates.

Copyright clearance service CLL notes that "as the current provision for fair dealing for research or private study is already open to abuse by educational institutions and libraries ... the act must make it clear that an individual can take only one copy of the material being copied ... and that it cannot be copied for permanent electronic storage, retransmission or copying for others. Electronic transmission or communication of copyright works or extracts from users to colleagues, clients etc could not be deemed fair dealing for research and private study purposes as it would prejudice the legitimate interests of the copyright owner."

RIANZ argues for several pages against format shifting -- allowing personal copies of sound recordings. It says any limited exemption for transient copying "should only apply to liability for infringement, not infringement itself, and be based on the provision in the European Information Society Directive". Webcasts should not be protected as copyright works. The protection of technological measures should cover access control and be extended to the act of circumvention and include criminal sanctions, RIANZ says.

Submissions can be viewed here.