Digital Copyright Bill — New Zealand

Thursday, 15 March 2007

The New Zealand government is looking to update the country’s copyright laws by implementing the new Copyright (New Technologies and Performers’ Rights) Amendment Bill, also referred to as the Digital Copyright Bill. They recently called for submissions from the public on this Bill. I’m posting my submission here for two reasons. First, because this is an important issue and I’d like it to gain more exposure. More importantly, I want to post it here because I missed the submission closing date.

In my defence, the website stated that the closing date was 9 March. I interpreted this to mean that I could make a submission on this date. But what they actually meant was that submissions would be closed from that date, meaning that the actual last date for submission was the 8th. Now I would have made it on the 8th, but as it happened my wife went into labour on that date. Our son was born that night, and I found myself back at home briefly in the early hours of Friday morning. Instead of sleeping, I quickly finished my submission and attempted to submit it, only to be told that submissions were closed. This was at 5am on 9 March. This was pretty annoying, but I did have a wonderful new baby so I think I came out ahead.

Anyway, here is my submission. For reference you can look at the Amendment. There’s also a Digital Copyright Bill — Questions & Answers document written by the author of the bill.


I support the intent of this bill.

The bill is a good attempt to bring the copyright laws up-to-date with recent technological developments while avoiding mistakes made in other Acts, such as the USA’s DMCA. However, it does contain some inconsistencies and weak spots that leave it open to abuse, particularly by copyright holders. The two-year “sunset clause” attached to the otherwise exemplary format-shifting of sound recordings clause is particularly incongruous.

Amendment 23 (Transient reproduction)

Section 43A (b) (i) is too restrictive and should be deleted. It states that a transient copy is not infringing as long as it is a part of a non-infringing communication. However, the nature of the communication should not matter — it would be an unreasonable burden on ISPs to determine the legal status of every message communicated through their networks.

For example, if Alice sends Bob a copyright-infringing email, then the many transient copies made by various email servers on the Internet should not be considered to be infringing copies. Under the current amendment, they would.

Amendment 43 (Contractual terms)

Section 80 is excellent in that Section 80C establishes a very reasonable set of inalienable rights relating to use of software.

Amendment 44 (Format shifting)

The “sunset clause” in section 81A(3) should be removed. It is completely unnecessary since section 81A(2) allows the copyright owner to withhold the right to make personal private copies. Two years (the limit of the sunset clause) is plenty of time for copyright owners to do this if they wish to. In any case, the right to make personal private copies granted by section 81A(1) is very limited, with no fewer than seven conditions that must be satisfied. This represents less than the bare minimum of reasonable fair use rights; less because it inexplicably only applies to sound recordings.

The clause is doubly unnecessary, since the Amendment’s explanatory note (page 3, paragraph 7) states that this amendment, along with all the others, will be fully reviewed within five years anyway. Section 81A is not so special that it cannot stand for five years before being reviewed.

(Note that the “Digital Copyright Bill — Questions & Answers” document claims that the sunset clause caters “to the interests of both copyright holders and copyright users” whereas in fact it clearly benefits copyright holders at the expense of copyright users.)

Amendment 53 (ISP liability)

This section attempts to prevent ISPs from having to judge copyright infringement. When ISPs have this legal responsibility, they become susceptible to bullying from copyright owners (or even by those claiming to be copyright owners), as can happen under the USA’s “notice and takedown” system. However, the section does not adequately protect ISPs.

Section 92C(2)(a)(i) places an undue burden on ISPs. It states that an ISP infringes copyright if it knows or has reason to believe that it is storing infringing material. However, the “reason to believe” would almost inevitably in some cases take the form of an intimidating letter from a large law firm. An ISP receiving a claim of infringement from a large law firm representing a powerful copyright owner will be forced to remove the allegedly infringing material rather than run the risk of incurring crippling legal costs.

A Canadian-style “notice and notice” system would be fairer in these cases, allowing the ISP to focus on its role as a service provider, without the need to become involved in copyright disputes between third parties.

Amendment 89 (TPM prohibitions)

Section 226A(1) is too restrictive. A TPM spoiler may be used mainly to enable permitted use (for example, format or time shifting) and only incidentally allow infringement. Thus if even a trivial infringement is likely, then dissemination of the spoiler (with associated large-scale benefits to copyright users) is prohibited. Note however that copyright owners are always free to contractually prohibit otherwise permitted uses.

Sections 226C(1) and 226H(1) may be too general. The “Digital Copyright Bill — Questions & Answers” document states that “criminal liability is limited to large-scale commercial dealings” while the Amendment itself refers only to dealings “in the course of business”. Even if it is assumed that “in the course of business” refers only to commercial business, the Amendment still appears to criminalise even very small-scale dealings in TPM spoilers.

Section 226D(2) should permit dealing in information as well as in TPM spoilers. For consistency with the rest of the Amendment it should read, “a TPM spoiling device or the provision of information to enable a qualified person”

Section 226F is too general; the definition of CMI should be restricted to prevent abuse by copyright owners. CMI should be defined as embedded information that fulfils conditions (a) or (b); and is specifically designed to do this; and does not do anything else. (cf. Section 226, definition of TPM spoiling device.) This would prevent copyright owners from combining CMI with other information (such as privacy-tracking information) and having the CMI protection extend to the other information also. Indeed, the Amendment’s explanatory note (page 5 paragraph 1) specifically excludes usage-tracking information and presumably other irrelevant information, so the actual Amendment should make this clear.



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