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• Copyright (New Technologies) Amendment Act 2008

• 8 April 2008
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56. It is recommended that the Committee:

1. note that amendments are required to the Copyright Act 1994 ("the Act") to clarify its application to digital technologies;
2. agree that the definition of copying be amended to clearly include digital formats;
3. note that a further proposal to clarify the definition of copying may be put forward when a draft Bill is submitted for approval to the Cabinet Legislation Committee;
4. agree that a limited exception to the reproduction right be provided for transient copying undertaken by computers or communication networks as a result of an automatic or inevitable technical process;
5. agree that existing rights to broadcast or include a work in a cable programme service be amended:
   1. to provide a technology-neutral right of communication to the public;
   2. to extend copyright protection to all communication works, not just the signals that carry copyright content in broadcasts and cable programme services; and
   3. to provide exceptions for the print disabled;
6. agree that s88 of the Act, which allows cable programme services to re-transmit free-to-air television broadcasts without the permission of the broadcaster, be repealed;
7. agree that the potential liability for Internet service providers for both primary and secondary infringement be limited in appropriate circumstances, including where Internet service providers merely provide communication facilities, and to allow caching in order to provide efficient Internet services;
8. agree to amend the provision relating to technological protection measures:
   1. so that the prohibition against the making, importing, hiring and selling of devices, services or information designed to circumvent "copy protection" be expanded to cover devices, services or information that circumvent technological protection measures that protect all rights provided to copyright owners, including communication, not just copying; and
   2. to facilitate the actual exercise of permitted acts where technological measures have been applied;
9. agree to create an offence (of a fine not exceeding $150 000 and/or a term of imprisonment of up to five years) for large scale commercial dealing with devices, services or information designed to circumvent technological protection measures;
10. agree that protection be provided for electronic rights management information ("ERMI") that identifies content protected by copyright and the terms and conditions of use, but not the tracking functions associated with this technology;
11. agree to create an offence provision (of a fine not exceeding $150 000 and/or a term of imprisonment of up to five years) for commercial dealing in works where ERMI has been removed or altered;
12. agree that the exceptions to copyright owners' exclusive rights be clarified and amended to allow:
    1. the application of the fair dealing provisions to the digital environment;
    2. fair dealing for the purposes of news reporting by means of all communication technologies and media, not just sound recordings, broadcasts and cable programmes;
    3. preservation of works held by libraries and archives (and where appropriate, museums) by digital means;
    4. on-site and remote access to material received in digital form by libraries and archives on strict conditions which limit the risk of infringement occurring, but with no right to digitise print works for this purpose;
    5. reproduction and communication of material received by libraries in digital form to users or other libraries on request, subject to strict conditions that limit the risk of copyright infringement occurring;
    6. caching of websites by educational establishments for teaching purposes for a limited time;
    7. communication (digitally) of material by educational establishments where this is consequential to permitted copying;
    8. application of the existing time-shifting exception to all technologies, excluding some on-demand services that can conveniently be accessed on request;
    9. format-shifting by the owner of a legitimately acquired sound recording to make one copy of that recording in each format for personal and domestic use; and
    10. decompilation and error correction of software (including in relation to technological protection measures) subject to strict conditions that protect the legitimate interests of copyright owners;
13. note that the above amendments would make the Act substantially consistent with the World Intellectual Property Organisation Copyright Treaty and the Performers and Phonograms Treaty (with the exception of changes required in respect of performers rights);
14. agree that amendments to the Act be followed by a public education campaign about copyright;
15. agree that the Act be reviewed again, to assess its effectiveness for digital technology, five years from the enactment of any amending legislation;
16. invite the Associate Minister of Commerce to issue drafting instructions to the Office of Parliamentary Counsel in order to give effect to the recommendations above;
17. agree to the public release of this paper; and
18. agree to extend the report back for the performers rights review to 31 August 2003.