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• Copyright (New Technologies) Amendment Act 2008

• 8 April 2008
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• A. The Relevance of International Standards
• B. Background to the WIPO Internet Treaties
• C. New International Standards relating to Digital Issues: The WIPO Internet Treaties

A. The Relevance of International Standards

66. International standards play an important part in ensuring that comparable levels of protection are provided around the world and that domestic copyright owners receive protection in foreign countries. The harmonising of international standards also facilitates the free movement of goods, services and financial capital.

67. In 1996 members of the World Intellectual Property Organisation (WIPO) agreed to new international standards addressing the implications of digital technology and the Internet for copyright and related rights. These are embodied in the WIPO "Internet Treaties": the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Although neither of these treaties is yet in force, they represent international consensus on the minimum extent of new rights that are required to ensure that international standards concerning copyright and related rights take account of digital technology and the on-line environment.

68. Formulation of any New Zealand responses to copyright issues that arise as a result of digital technology necessarily requires consideration of the international community's response to the same problems and issues through the WIPO Internet Treaties. It is also necessary to consider whether New Zealand should implement the requirements of the Treaties and ultimately accede (or become a party) to them.

B. Background to the WIPO Internet Treaties

69. The WCT and WPPT represent the results of efforts to revise and update international copyright standards to take account of technological developments that have occurred since the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)⁹ was last revised in 1971.

70. The proposed update of the Berne Convention initially proceeded in parallel with the multinational negotiations that resulted in the WTO TRIPS Agreement. It is arguable, however, that when TRIPS was concluded in 1994, the international standards concerning copyright and related rights reflected in TRIPS, the Berne Convention and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (Rome Convention) were already inadequate to deal with new issues arising from digital technology. New Zealand is not a party to the Rome Convention.¹⁰ None of these treaties explicitly take account of the protection of works in the digital environment.

71. The WCT - a "special agreement" within the meaning given to that term in the Berne Convention - deals with the rights of authors of "literary and artistic works" (the meaning given to these terms in the Berne Convention is broader than is given in the Copyright Act and includes musical and dramatic works).¹¹ The WCT deals with the traditional subject matter of copyright.¹²

72. The WPPT deals with the rights of performers and producers of phonograms (sound recordings), which are subsets of related or neighbouring rights.¹³ In New Zealand law, sound recordings are treated as works of copyright. When considering the new WIPO standards in copyright it is necessary, therefore, to consider the provisions of the two WIPO Internet Treaties that relate to the rights of copyright owners together.

73. Before the conclusion of the WCT and WPPT, WIPO also intended to reach agreement on new international standards relating to performers' rights in relation to audiovisual performances, rights of broadcasting organisations and databases. This did not, however, take place.¹⁴ These issues remain on the WIPO workplan.

C. New International Standards relating to Digital Issues: The WIPO Internet Treaties

74. There are four main areas in which the WIPO Internet Treaties set new international standards in relation to the dissemination of digitised material:

• The right of communication to the public and the right of making available to the public: In the WCT, this new right applies to the communication of works (such as cable services). It therefore fills a gap in the Berne Convention, which applied only to wireless (broadcast) communication. In effect it provides for a right of cable transmission. The provision also includes a right to make works available in such a way that members of the public may access these works from an on-demand interactive system, such as the Internet. In the WPPT, there is a new right of making available for phonogram producers that is separate from the right of communication. These rights give copyright owners the exclusive right to both post their works on and transmit their works to the public via the Internet.
• Technological protection measures. Both the WCT and the WPPT include a general requirement to provide adequate legal protection in relation to effective electronic technological protection measures, such as copy and access-protection technologies. The Treaties also require effective legal remedies against the circumvention of such protection.
• Rights management information. Both Treaties include a general requirement to provide adequate and effective legal remedies in relation to electronic rights management information, such as digital water-marking, and against tampering with such information.
• Limitations and exceptions. Limitations and exceptions in respect of these new rights are allowed but must satisfy the "three-step test" that applies to the right of reproduction conferred in the Berne Convention.¹⁵ This requires that limitations and exceptions to the rights granted under the Treaties must: apply only in special cases; must not conflict with the normal exploitation of the work; and must not unreasonably prejudice the legitimate interests of the copyright owner.

75. The WIPO Internet Treaties do not include provisions relating to the contentious issue of transient reproduction. Both treaties do, however, refer to "agreed statements"¹⁶ that were issued by the Diplomatic Conference that, in reference to the question of transient copying, state that the storage of a protected work in digital form in an electronic medium constitutes reproduction within the meaning of the Berne Convention. Subject to these provisions, the treatment of transient copying is effectively left to individual member states to decide.

⁹New Zealand is a member of the (1928) Rome Act revision of the Berne Convention, although the Copyright Act 1994 complies with the requirements of the (1971) Paris Act revision.

¹⁰TRIPS does, however, include obligations drawn from the Rome Convention, meaning New Zealand has implemented most of the Convention's substantive provisions that were not already provided in the Copyright Act.

¹¹Berne Convention, Article 2(1).

¹²Those aspects of the WPPT that relate to the rights of performers in relation to phonograms are discussed in the Ministry's associated discussion paper on performers' rights.

¹³Related or neighbouring rights are rights that are related to or neighbour on copyright. Examples are: performers rights, the rights of phonogram producers, publishers' rights in typographical arrangements and the rights of broadcasting organisations in relation to their broadcasts. In New Zealand, related or neighbouring rights are provided through the Copyright Act, although there in some countries they are provided through legislation separate from copyright.

¹⁴A draft WIPO treaty concerning audiovisual performers' rights was the subject of a diplomatic conference in December 2000 in Geneva. A new treaty was not, however, concluded at that time. (Refer to the associated paper on performers' rights for further detail).

¹⁵Berne Convention, Article 9(2).

¹⁶The agreed statements, which are not provisions of the Treaties, are intended to be used as aids to interpretation.