Copyright agitators stick to their guns

Submissions on potential changes to the country’s copyright legislation appear to be sticking to predictable positions.

The government is considering changes to the 1994 Copyright Act in light of technological changes in the ensuing decade. In 2001 the Ministry of Economic Development released a discussion paper on the 1994 Copyright Act with regard to issues posed since the development of digital technology.

After it received 74 submissions, the ministry issued a position paper seeking further submissions and received 56. The ministry’s position paper homed in on, among other things, the status of transient copies, the liability of ISPs for the transmission of copyright material, digital rights management, personal copies and, briefly, reverse-engineering of software.

The office of Judith Tizard, the associate minister of commerce whose brief covers intellectual property, says legislation is being drafted and it is hoped to have it before the House this year.

The submissions that have been released contain a range of reactions from cautious praise to indignant condemnation. Copyright holders and legal specialists are for the most part arguing for strengthening, or at least no lessening, of copyright protection. User representatives in education and libraries, meanwhile, are pushing for at least equivalent access to copyright material in digital form.

The MED’s position on ISP liability preferred that of UK legislation. An “information society service” caching temporary material is generally not liable. The same applies if it holds it for a third party but “does not have actual knowledge of unlawful activity or information; or, where a claim for damages is made, the service provider is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful.” Upon obtaining such knowledge or awareness, the service provider must act “expeditiously to remove or to disable access to the information” and the “third party subscriber was not acting under the authority or the control of the service provider”.

Libraries and universities wanted the role of an information society service clarified.

Biggies yet to come

Submissions still to be made available include the Newspaper Publishers Association of New Zealand, Microsoft, Recording Industry Association of New Zealand, Telecom, TVNZ and the local copyright bodies.

The New Zealand Vice-Chancellors’ Committee felt that universities require the right to provide access for their users to copies of copyright publications in electronic format, rather than print format, via a secure intranet server that is accessible only to authenticated participants of the courses for which the publications are required or form part of the recommended reading.

NZVCC also said that if transient copying is not excluded from the definition of copying, it will fall within the act’s “restricted acts”. This would have the effect of creating liability for those users who retrieve a copyright-protected work by digital means, and in doing so create incidental copies of the protected work.

IP lawyer Ken Moon and firm AJ Park say no case has been made for such exceptions as decompiling software and for error correction in software.

Moon says these issues were considered in the drafting of the Copyright Act 1994 and rejected.

However, the US-based Computer and Communications Industry Association says in its submission that it has found decompilation — which is permitted in the US — is the only method that can uncover the information necessary to create programs that will interoperate with other programs.

“Among the many benefits of allowing this form of reverse engineering is fostering competition in the software industry.”

CCIA recommends adding a “black box” reverse engineering exception, which is less intrusive than decompilation because it involves observing the external behaviour of the program rather than translating the program’s code. CCIA says the EU Software Directive contains such a black box reverse engineering exception, as does the Australian copyright law. They can void contractual restrictions on reverse engineering, which is necessary to prevent a dominant software company from unilaterally rendering the reverse engineering exception meaningless.

Moon says MED’s idea that “temporary storage in RAM for the purposes of executing a computer program or game does not constitute infringement” has no justification.

He says the ability of the owners of copyright in software and games to control the running or execution of such software or games “provides the legal underpinning for the business model under which most, if not all computer programs are commercialised — the software licence”.

Moon says the ministry’s latest proposal would destroy the legal basis for software licences and affect the royalty and lease provisions of the Income Tax Act as they apply to revenue for the commercialisation of software.

Media levy

Jane Wrightson from screen producer group Spada did not believe that any format-shifting — copying to another medium — exception should be considered without the implementation of some form of blank tape levy. “ That individual acquires the benefit of being able to play the same music in two different situations, for example, home and car, without recompensing the copyright owners of that sound recording.”

APRA, the performing rights association, agreed to some degree. It felt that allowing personal copies was inconsistent with the government’s economic development policy. Among its arguments was that even if such a practice is widespread or digital technology allows such copying with relative ease, it does not legitimise the activity.

APRA wondered: “Will the exception include DVD technology and other audiovisual media? … With no corresponding levy as relative compensation composers and producers of sound recordings are unfairly prejudiced. If such an exception is favoured, in APRA’s view such introduction must be accompanied by a corresponding compensation scheme for copyright owners.”

The Council of NZ University Libraries agreed with the position paper that libraries should not be prevented by technological protection measures from taking advantage of the library exemptions permitted under New Zealand law but strongly disagreed with the suggestion that libraries be permitted to provide access to digital materials only through on-site terminals.

The Correspondence School pushed for greater copyright exceptions for libraries and distance education. It believes libraries and archives should be permitted to digitise the whole of a hard copy, and that format- and time-shifting should be available not only for personal domestic use but also for libraries and education. TCS also thought format-shifting should be extended from sound-only to all types of recording.

Legal publishers Brookers and LexisNexis believed that if educational institutions and library archives can make available and communicate copyright material in digital format, it could have a devastating impact on the publishing industry in New Zealand. They felt the same about libraries and archives able to interloan by digital means, and that it would be hard to control further copies.

“We see libraries and educational institutions performing a valuable public function, but see definite value to ourselves, our authors and customers in channeling business usage of our products through our own sites rather than through library-hosted facilities.”

The publishers agree that there is different value between searchable databases and print copies.

CCIA was “heartened” by the position paper’s conclusion that “there does not seem to be any need to extend protection for non-original databases beyond protection as compilations”. CCIA says the creation of a sui generis — that is, unique — property right in the facts underlying a database “would stifle research and commerce by locking these facts up. Many of the companies are urging such protection already enjoy limited competition, and in some instances, a pure monopoly position.”

The Auckland District Law Society law and technology committee largely agreed with MED’s proposals. It noted that in contrast to the US, New Zealand is a net importer of copyright works, “and our legislation should be most conscious of ensuring that the rights of copyright users are not reduced or eviscerated in the digital environment”.

The rights of copyright owners can easily be increased, says the committee, by the legislature, as shown by the many extensions to the copyright term in the United States. “We are not confident that the converse would apply.”

Distance learning should fall within the existing exceptions, while time- and personal-use format-shifting should be allowed — for films also. Software decompilation should be allowed, though perhaps it should also be able to be excluded by contract.

Vodafone felt the format shifting exception should be widened to apply to all digital content, as long as it involved one copy for the purchaser’s own personal, private, non-commercial use. The words “format”, “domestic” and “purchased” should be clarified or amended.

Hard line

ITANZ, the Motion Picture Association and International Intellectual Property Alliance took a hard line.

ITANZ considered that MED should amend the definition of “copying” in the act to make it clear that digitisation of copyright works is a right reserved to the copyright owner and that transient copying is also a restricted act reserved to the copyright owner.

ITANZ also believed that copyright owners and those which collate and digitally disseminate information should be able to protect their revenue streams by using technological protection measures. Circumvention should be prohibited and potentially criminal.

Digitised works are more vulnerable to abuse of fair-use privileges than non-digitised works, ITANZ says, and any exceptions for digital fair-use must be drafted more narrowly to compensate for this fact.

MPA, representing a group of large US film producers and distributors, submitted that allowing libraries permitted access to electronic works through on-site terminals offers little incentive for a library to license more than a single copy of an electronic product.

MPA says format shifting should not apply to audiovisual works. “Throughout the world, including New Zealand, a motion picture release traditionally takes place in a staged process called ‘windows’, which provides for a motion picture to be released in different formats in a sequential order.” Permitting the format shifting of audiovisual works at any one step in the sequence could seriously undermine the distribution process and the ability of the copyright owner and/ or its distributor to exploit fully the work in the usual manner, severely prejudicing their rights, the MPA submits.

The MPA says the imposition of a levy scheme is burdensome and unnecessary where DRM measures are present and protected. The IIPA takes a predictably hard line on ISP liability and digital rights management, wanting criminal liability for most breaches.

Format-shifting would wipe out an entire tiered licensing system, meaning that providers of these services would be forced to charge all consumers the price applicable to the highest tier since all would have the same privileges to copy into different formats, IPA said.

Submissions as they are released.