Feasible Options (Regulatory and/or Non-Regulatory) That May Constitute Viable Means for Achieving the Desired Objective(s)
Status Quo
5. Copyright is regulated by the Act. Copyright subsists in original works, for example, literary, dramatic, musical and artistic works, films and sound recordings. Copyright also protects the signals that carry content in broadcasts and cable programmes. Thus, there may be copyright in a film and a separate copyright in the signal that carries that film when it is broadcast on television.
6. Copyright owners have a range of exclusive rights in respect of their works, in particular copying and issuing copies to the public. Transient copying (i.e. automatic and inevitable copying that takes place during the operation of computer or communication networks) potentially gives rise to liability for copyright infringement. Internet service providers could also potentially be liable for storing or transmitting copyright material on behalf of third parties. Copyright owners also have an exclusive right to broadcast their works or include them in a cable programme service. An exception exists for cable programme services to re-transmit free-to-air television broadcasts without the permission of the broadcaster.
7. In the electronic environment, it is prohibited to supply or manufacture devices or means or to supply information specifically designed to circumvent "copy protection" mechanisms (i.e. technological mechanisms applied to a digital work that prevent copying of the work) and intended to be used to make infringing copies of copyright works. Civil penalties only apply to infringement of this provision.
8. In addition to the rights provided to copyright owners, there is also a series of exceptions for users, allowing them to use copyright material in certain limited circumstances: for example, news reporting, research and private study and copying by libraries and educational institutions.
Preferred Option
9. The preferred option clarifies, and in some cases extends, existing regulation under the Act in the following ways:
- Providing an exception for transient copying in certain circumstances;
- Replacing copyright owner's existing technology-specific rights to control distribution via broadcasting and cable programme services with a technology-neutral right applying to all forms of communication of copyright works to the public;
- Providing copyright protection for all communication works (for example, transmission via the Internet), not just the signals that carry content in broadcasts and cable programmes;
- Repealing the exemption for cable programme services to retransmit free-to-air broadcasts without the permission of the broadcaster;
- Limiting liability for Internet service providers for both primary and secondary infringement in appropriate circumstances, including to allow caching (i.e. storage of Internet documents on the service provider's servers to be retrieved at a later time);
- Prohibiting the supply or manufacture of devices, means or information that circumvent technological protection mechanisms, where circumvention could enable infringement of any of the copyright owner's exclusive rights (e.g. technological devices on music CDs that prevent the content from being copied), and providing criminal penalties for large scale commercial dealing in circumvention devices, means or information;
- Introducing protections for electronic rights management information ("ERMI") that identifies content protected by copyright and the terms and conditions of use, and providing criminal penalties for large scale commercial dealing in copyright material where the dealer knows that ERMI has been removed or altered; and
- Clarifying the extent of making available of digital material by libraries and archives, educational use and time-shifting, and introducing exceptions for format shifting, decompilation and error correction.
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