• Home
• Regulation
• Intellectual Property Policy
• Copyright
• Copyright (New Technologies) Amendment Act 2008
• Discussion Paper
• Part Five

• Intellectual Property Policy

• Copyright

• Copyright (New Technologies) Amendment Act 2008

• 8 April 2008
• FAQ
• Submissions Received
• Cabinet Paper
• RIS - Digital Copyright Review
• Media Statement - 25 June 2003
• Position Paper
• Release of Position Paper
• Internal Working Paper
• Submissions Summary
• Discussion Paper

• A. Key Issues
• B. Specific Issues
• C. List of Questions

212. For the convenience of submitters, the following summarises the issues, approaches and options that have been discussed in this paper.

A. Key Issues

213. Persons making submissions are reminded that the purpose of this paper can be expressed in the following questions:

• Is there a need to amend the Copyright Act 1994 in light of developments in digital technology and the Internet? If so, what are the key issues that should be addressed?
• What changes should be made (if any) to ensure that copyright regime continues to provide an appropriate balance between the interests of copyright owners and users?
• Should New Zealand implement the requirements of the WCT and those aspects of the WPPT that relate to the rights of phonogram producers, and ultimately accede to those treaties? If so, what changes need to be made to the Copyright Act 1994 over and above those required by the Treaties?

B. Specific Issues

214. Specific issues that arise from digital technology are:

• the right to copy copyright works;
• the right to communicate copyright works to the public, including the transmission of works to audiences over the Internet (including "webcasting"), the making available of works on the Internet and the retransmission of free-to-air broadcasts using digital technology;
• whether, and in what circumstances, Internet service providers(ISPs) should be liable for copyright infringement relating to the activities of their subscribers;
• the legal protection of technological protection measures and electronic rights management information;
• the legal protection of electronic databases; and
• whether any new exceptions or permitted uses are required to protect the interests of the users of copyright works and the wider public interest in the digital age.

C. List of Questions

215. Persons making submissions are asked to respond to the following questions:

Question 1

Are there any significant copyright issues, other than those identified in paragraphs 53 and 214 above, that are raised by digital technology?

Question 2

What are the relative advantages or disadvantages for New Zealand copyright creators, owners and users of implementing and acceding to the WIPO Internet Treaties?

Question 3

In considering the adequacy of existing copyright legislation in relation to issues raised by digital technology, which of the following broad approaches should New Zealand adopt, either:

1. make no changes at this time, but consider future legislative amendments when a pressing need is demonstrated or when a more comprehensive review of the Act is undertaken;
2. directly implement the provisions of the WIPO Internet Treaties only; or
3. address any particular concerns relating to digital technology through measures designed to meet the needs of New Zealand copyright stakeholders, bearing in mind the provisions of the WIPO Internet Treaties?

Question 4

1. Does the definition of "copying" in the Copyright Act give copyright owners sufficient control in relation to the digitisation of their works?
2. If not, should the definition of "copying" in the Act be amended by:
   • expanding the definition in relation to "storage in any medium by any means" to include other works, for example sound recordings, films and/or typographical arrangements; or
   • specifically providing that "copying" a work includes its conversion into a digital form?

Question 5

1. Is there a need to amend the definition of "copying" in the Act to take account of incidental and temporary copies that are automatically made by computers and computer networks as part of technical processes?
2. If so, should the definition of "copying" be amended to:
   • include the making of temporary or incidental copies in all circumstances;
   • include the making of temporary or incidental copies, but excuse liability for infringement where the copying is automatically undertaken as part of a technical process in a computer system; or
   • exclude copying that is automatically undertaken as part of a technical process in a computer system?

Question 6

1. Is there a need to amend the Copyright Act to include an explicit right to control the communication to the public of works over the Internet (webcasting)?
2. If so, should this be done either by either:
   • providing a new exclusive right to copyright owners to transmit a work to the public via the Internet (webcast a work);
   • amending the definition of "cable programme service" to include webcasting and a combination of both broadcasting and cable transmission to the public; or
   • replacing the exclusive right to broadcast a work or include a work in a programme cable service with a technology-neutral communication right that would cover broadcasting, inclusion in a cable programme service, webcasting and any combination of these?

Question 7

1. Should webcasts or Internet transmissions to the public be protected as copyright works in the same way as broadcasts and cable programmes currently are?
2. If so, should this be done by either:
   • adding webcasts to the list of copyright works as a separate category in the same way as broadcasts and cable programmes are currently protected; or
   • creating a new category of technology-neutral communication works, which would include all types of transmitting works to the public?

Question 8

1. Should the Copyright Act be amended to provide owners with an exclusive right that expressly controls the making available of their works in an interactive, on-demand system, such as the Internet?
2. If so, should such a right either:
   • form part of the right to issue copies to the public;
   • be provided as a separately stated exclusive right; or
   • form part of any new technology-neutral right of communication that would apply to Internet transmissions?

Question 9

Should the current retransmission provision be:

1. retained in its current form;
2. removed altogether; or
3. extended to allow the retransmission of free-to-air broadcasts by other means such as satellite and/or webcasting, in additional to inclusion in a cable programme service?

Question 10

If the retransmission provision was expanded to include satellite pay-TV service providers, should there be a requirement that any retransmissions of free-to-air broadcasts be made with shared service information and without encryption so that anyone with the appropriate reception equipment can receive these free-to-air retransmissions without charge?

Question 11

1. Should ISPs be liable for copyright infringement in relation to the operation of Internet services?
2. If so, should they be liable for copyright infringement in relation to:
   • temporary or incidental copies that are made without the permission of copyright owners in the provision of Internet services to subscribers; and/or
   • infringing copies made by subscribers that are distributed using an ISP's services in all circumstances; or
   • only for infringing copies made by subscribers that are distributed using the ISP's services in some circumstances?
3. If ISPs should only be liable for copyright infringement in relation to the activities of their subscribers in some circumstances:
   • what should those circumstances be; and
   • should liability be excused where ISPs have undertaken certain measures, for example to guard against the use of their services for activities that amount to copyright infringement or to restrict (or "take down") access to websites that contain infringing material where this comes to their attention?

Question 12

1. Are existing legal provisions sufficient to protect the interests of copyright creators and owners concerning the use of technological protection mechanisms and electronic rights management information in relation to copyright works?
2. If existing legal provisions are not considered adequate, what changes or additions should be made? In particular, which of the following non-exclusive approaches should be examined in more detail:
   • expanding the existing copy-protection provisions in the Act;
   • introducing new provisions in relation to electronic rights management information;
   • providing that suppliers of circumvention devices, means or information be liable for infringement where they ought reasonably to have known that the device, means or information would be used for circumvention purposes;
   • introducing criminal sanctions in relation to prohibited activities relating to technological protection measures and/or electronic rights management information; and/or
   • prohibiting the actual circumvention of technological protection measures and/or interference with electronic rights management information.

Question 13

1. Is there any need to provide additional protection for databases above what is already available under the Copyright Act?
2. If there is a need to provide additional protection for databases, should that protection be provided through:
   • the Copyright Act;
   • some form of sui generis or custom-made legislation; or
   • under a combination of both?

Question 14

If increased protection were provided, what is the best way to balance the demands of database producers and the interests of users of information?

Question 15

1. Should the existing list of permitted acts apply in its entirety (including fair dealing and time shifting) to owners' rights in the digital environment?
2. What changes might be needed to be made to the scope of those exceptions to ensure that the balance provided between the rights of copyright owners and users in the print/analogue world is mirrored in the digital world?

Question 16

Are any additional permitted use provisions required to ensure reasonable access to copyright works for news reporting, research and or educational purposes in the digital environment?

Question 17

1. Is the current list of permitted acts adequate to ensure that users have reasonable access through libraries to works of copyright in the digital environment? If not, how should the existing provisions be amended?
2. Is there a need to provide new permitted uses in the Act to allow libraries to make digital copies of their collections without the permission of copyright owners for archival purposes and/or to facilitate on-demand access to digital copies from on-site computer terminals?
3. Should any permitted use in relation to digitising for archival purposes be restricted to the National Library, or should it apply to all prescribed libraries and archives under the Act?

Question 18

Should the current time-shifting exception that applies to broadcast and cable television programmes apply to webcasts?

Question 19

1. Given the potential for liability for copyright infringement to arise out of the common practice of format shifting of sound recordings for personal use and convenience, should an exception be introduced in limited circumstances?
2. If so, what limitations should be placed on private individuals in relation to format shift sound recordings?

Question 20

What other changes to the existing permitted uses provisions in the Copyright Act, if any, should be examined?